Research Paper

ALTERNATIVE DISPUTE RESLOTION

TOPIC: - Alternative Dispute Resolution in Matrimonial Disputes: with

special reference to domestic violence cases

SUBMITTED BY- SUBMITTED TO-

SHREEMAI JHA MS. NEHA TRIPATHY

ROLL NO- 469 AND FACULTY-IN-CHARGE

SHIVANI PUROHIT

ROLL NO- 467

SEMESTER – IX ‘B’

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1. ABSTRACT

The Indian Judicial System has for a long time struggled with the timely judgment delivery of
cases which has led to a huge backlog of cases. This grave situation has further escalated with
the increasing number of cases that are being filed before the courts dues to various factors such
as greater awareness and literacy amongst others. Thus comes alternative dispute resolution
(ADR) as a parallel platform to share the burden of the courts. It allows the parties to be able to
avoid the typical court procedure that could stretch over years and resolve their issues on their
own terms.

It is not uncommon for the courts to face a growing number of matrimonial cases. In such
situations as well ADR shines as savior to those who are hesitant to discuss these issues in a
judicial proceeding. The courts also believe that pre judicial dispute settlement in cases of this
nature can serve to be more effective and have thus made it a part of the legislature as well.
However that cannot be the end of the thread. Even with the statute in place, like almost every
other legal scenario, this too faces its own problems at the application stage.

The paper thus discusses the legal situation with respect to matrimonial disputes and ADR.
Special emphasis has been made to highlight cases based on domestic violence, which even
though is a criminal offence is often dealt through ADR which is typically employed in civil
cases. Such deviation from the general norm not only indicates a rather interesting situation but
also puts under scrutiny the outlook of the courts and the society in general while dealing with an
age old problem. The paper also aims to encompass the probable reasons for such preference and
the potential threat of the same.

2. LIST OF ABBREVIATIONS

AIR - All India Reporter

ADR - Alternative Dispute Resolution

Bom. - Bombay

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Cr.P.C. - Code of Criminal Procedure

ILR - Indian Law Reporter

IPC - Indian Penal Code

Kar - Karnataka

Ors. - Others

PWDVA - Protection of Women from Domestic Violence Act

SC - Supreme Court

SCC - Supreme Court Cases

V. - versus

3. LIST OF AUTHORITIES

Cases

 Mohammed Mushtaq Ahmad and Ors. v. State by Kengeri Police Station and Ors.:
2015(3) AIR 363

 Gurudath K. v. State of Karnataka: MANU/KA/2695/2014.

 Smt Padmavathi v. Sri M Suresh Balla: ILR 2012 KAR 3926

 B.S. Krishnamurthy v. B.S. Nagaraj: AIR 2011 SC 794

 Jaya Sagade v. State of Maharashtra: 2015(5) Bom CR 633

 ONGC Vs. Western Co. of Northern America : 1987 AIR 674

 ONGC Vs. Saw Pipes Ltd.: Appeal (civil)7419 2001 of 518

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 A.Abdul Jalees v. T.A.Sahida: (2003) 4 SCC 166

 Ghanshyam Dass v. Domination of India: (1984) 3 SCC 46 140

 Raghunath Das v. UOI: AIR 1969 SC 674

 Gaurav Nagpal vs Sumedha Nagpal: AIR 2009 SC 557

 K. Srinivas Rao vs D.A. Deepa: CIVIL APPEAL NO. 1794 OF 2013

Statues

 Civil procedure code, 1908

 Indian Penal Code, 1860
 The Code of Criminal Procedure, 1973
 The Protection of Women from Domestic Violence Act, 2005

Books and articles

 Sriram Panchu, Mediation Practice and Law, (2nd ed., 2015) Lexis Nexis, New Delhi
 Vetsal Anita, Domestic Violence and Mediation: Concerns and Recommendations.
 Bhalotia Sandeep, Mediation in Domestic Violence Case: Whether to Use or Not to Use?
– An Indian Perspective.
 Hiram E. Chodosh, Mediating Mediation in India.
 Malhotra Anil and Malhotra Ranjit Alternative Dispute Resolution In Indian Family Law
– Realities, Practicalities And Necessities.
 Lord Bryce, Chapter-4 Judicial Approach towards ADR.
 Dyapak Desai & Sahil Kanuga, Mediation proceedings are confidential says Supreme
Court

4. STATEMENT OF PROBLEM

The entire purpose of legislating a statute for alternative dispute resolution is to provide an
separate platform to those people who are looking to avoid the lengthy procedure of the judicial

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system. However, even with the enactment of proper guiding laws, a number of fundamental
problems can be observed at the application level.

When strictly discussing the frontier of matrimonial cases the very first hurdle that needs to be
overcome is the social stigma attached to the discussion of matrimonial disputes outside the four
walls of a household. The procedure thus established would serve no purpose if the ones
suffering are not ready to seek a remedy. consecutively the procedure needs to be more
interpersonal in its treatment of cases while still remaining detached enough to be able to serve
the interests of the parties in a just and reasonable way. The paper aims to reflect on both these
problems and the mechanisms that are being adopted by the judicial system- whether in the form
of statutory laws or judicial precedents- to resolve this bottleneck of a situation.

5. HYPOTHESIS

The approach of alternative dispute resolution especially the method of mediation in matrimonial
cases is both efficient and party friendly. It not only saves time and prevents harassment to
family member specially children if any. However the application of mediation in domestic
violence cases is prima facie unacceptable because it is not always only physical but also
involves social and psychological factors.

6. RESEARCH QUESTION
 Why mediation as one of the alternative dispute resolution methods is better preferred in
matrimonial cases.
 Why issues of domestic violence are also referred for resolution through mediation

7. RESEARCH OBJECTIVE

The aim of working on the present topic is to understand in what manner and through what
mechanisms mediation is applied in matrimonial cases. The paper also endeavors to understand
what lead to such change in the judicial functioning of matrimonial cases that now it is

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obligatory for the courts to refer alternative dispute resolution methods to cases presented before
them. The paper also aims to determine the reason why courts and parties prefer mediation in
domestic violence cases

8. LITERATURE REVIEW
 Vetsal Anita, Domestic Violence and Mediation: Concerns and Recommendations - This
article combines recommendations of several researchers and studies conducted during
the 1990's to develop a mediation protocol that addresses concerns about the efficacy of
mediating with couples who have a history of domestic violence. In addition to suggested
techniques and procedures, the article concludes with insights into the societal issues of
violence and a long-term strategy for reducing the incidence of domestic abuse
 Bhalotia Sandeep, Mediation in Domestic Violence Case: Whether to Use or Not to Use?
– An Indian Perspective- The article aims to identify two opposite interests associated
with the settlement of domestic violence cases, and look at the Indian law to see how
those two interests are equitably balanced, therefore, providing a recommended way
forward, not necessarily a perfect one, to handle cases related to domestic violence.
Briefly, these two interests are – protecting family relationship and children from trauma
and to make sure that the abuser is made to pay for his deeds. The author presents in a
concise manner the legal deadlocks that make the entire procedure a rather unsatisfactory
one in the Indian scenario.
 Hiram E. Chodosh, Mediating Mediation in India- The article presents a juxtaposition of
the Indian laws on mediation with laws of other countries. He further presents through
the medium of various cases how the Indian judiciary has been dealing with the growing
number of matrimonial disputes through the method of mediation. The entire process of
mediation has been discussed in detail along with its benfits and drawbacks for the
readers to get an overall understanding of the development of this alternative platform in
the Indian context.
 Malhotra Anil and Malhotra Ranjit Alternative Dispute Resolution In Indian Family Law
– Realities, Practicalities And Necessities- The focal point of the article is to indicate the
problems in the ADR mechanism in India. The article however also synthesizes the most

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approachable methods of resolving this issues and the strengthening of the overall
mechanism.

9. INTRODUCTION

The Black’s Law Dictionary defines alternative dispute resolution as:

“When a resolution to a dispute is sought out of court. The processes of arbitration, conciliation,
and possession proceedings are alternates for the court system. This is a voluntary choice and a
3rd party is used to keep things neutral.”

One of the primary reasons parties may prefer ADR proceedings is that, unlike adversarial
litigation, ADR procedures are often collaborative and allow the parties to understand each
other's positions. ADR also allows the parties to come up with more creative solutions that a
court may not be legally allowed to impose.

Even though Alternative Dispute Resolution is intended to reduce the costs, stress, and formality
associated with going to court, many parties still hire attorneys to represent them at ADR
proceedings. They also seek out pre-proceeding consultations about possible solutions or
strategies. Just as with any legal dispute, you should hire an attorney with experience in your
particular legal issue who also is familiar with the collaborative process of ADR.

Additionally, arbitrators and mediators are often lawyers. Rather than hiring a lawyer to
represent each party in an ADR proceeding, some parties agree to hire a single lawyer to act as
an impartial third party to guide the resolution and ensure that all solution proposals are legal.

We all know that our Indian judicial system is very broad, fatigued, boring, unexciting and tiring.
Not only is the judicial process extremely expensive for an ordinary person but also takes years
and years to deliver justice. In order to overcome the much criticized delay in justice delivery,
the adoption of Alternative Dispute Resolution (ADR) mechanisms like Lok Adalats, arbitration,
mediation and conciliation was thought of and subsequently practiced with commendable
success. Although the alternative mechanisms have delivered speedy justice to the people, yet
the exercise has raised some pertinent questions by some legal luminaries.

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The Law Commission of Indian has maintained that, the reason for judicial delay is not a lack of
clear procedural laws, but rather the imperfect execution, or even utter non-observance, thereof. 1
The Law Commission of Indian in its 14th Report categorically stated that, the delay results not
from the procedure lay down by the legislations but by reason of the non-observance of many of
its important provisions particularly those intended to expedite the disposal of proceedings.
Given the huge number of pending cases, the governance and administrative control over judicial
institutions through manual processes has become extremely difficult.2

10. FAMILY DISPUTES AND ADR- PREFERNCE TO MEDIATION

The access to justice is a human right and fair trial is also a human right. In some countries trial
within a reasonable time is a part of the human right legislation. But, in our country, it is a
Constitutional obligation in terms of Article 14 and 21. Recourse to alternative dispute resolution
as a means to have access to justice may, therefore, have to be considered as a human right
problem. Considered in that context the judiciary will have an important role to play.

Even before the existence of Section 89 of the Civil Procedure Code, there were various
provisions that gave the power to the courts to refer disputes to mediation, which sadly have not
really been utilized. Such provisions, inter alia, are in the Industrial Disputes Act, the Hindu
Marriage Act and the Family Courts Act and also present in a very nascent form via Section 80,
Order 32 A and Rule 5 B of Order 27 of the Code of Civil Procedure. A trend of this line of
thought can also be seen in ONGC Vs. Western Co. of Northern America 3 and ONGC Vs. Saw
Pipes Ltd.4 Industrial Disputes Act, 1947 provides the provision both for conciliation and
arbitration for the purpose of settlement of disputes. Section 23(2) of the Hindu Marriage Act,
1955 mandates the duty on the court that before granting relief under this Act, the Court shall in
the first instance; make an endeavor to bring about reconciliation between the parties, where it is
possible according to nature and circumstances of the case.

1
Law Commission of India, 77th Report, pr.4.1
2
Chapter-4 Judicial Approach towards ADR , Lord Bryce
http://shodhganga.inflibnet.ac.in/bitstream/10603/190313/9/09_chapter-4.pdf
3
1987 AIR 674
4
Appeal (civil)7419 2001 of 518

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For the purpose of reconciliation the Court may adjourn the proceeding for a reasonable period
and refer the matter to person nominated by court or parties with the direction to report to the
court as to the result of the reconciliation. [Section 23(3) of the Act].

The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts with
a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage
and family affairs and for matter connected therewith by adopting an approach radically different
from that ordinary civil proceedings been delivered at the government office stating the cause of
action, name, etc..5

The object of Section 80 of Code of Civil Procedure – the whole object of serving notice u/s 80
is to give the government sufficient warning of the case which is of going to be instituted against
it and that the government, if it so wished can settle the claim without litigation or afford
restitution without recourse to a court of laws.6

The object of section 80 is to give the government the opportunity to consider its or his legal
position and if that course if justified to make amends or settle the claim out of court.7

Currently, mediation has grown up to be the most preferred way of alternative dispute resolution,
especially amongst foreign entities. The reasons include less expenditure and informal and
flexible rules. Mediation is often used as the first step to resolve any dispute and failing any
resolution under mediation, parties agree that disputes will be referred to arbitration.8

Matrimonial litigation is disproportionately burdensome to our courts. Marriage in India is

considered as a sacrament and not a contract. Mediation is a mere a facilitator that helps the
parties to reach for a settlement in dispute. Here parties get more flexible because of the friendly
environment unlike courts, which are not so friendly in nature, it is free from complex
procedures, easy to understand and, therefore, parties cooperate pleasantly. Mediation serves as
very helpful dispute mechanism in the case where, divorce are due to cruelty, unsound mind,
some communicable or dangerous diseases etc. in cases like these, such matter can be
communicated and confessed easily and effectively because their confessions will not go outside
5
A.AbdulJalees v. T.A.Sahida (2003) 4 SCC 166
6
Ghanshyam Dass v. Domination of India, (1984) 3 SCC 46 140
7
Raghunath Das v. UOI AIR 1969 SC 674
8
Dyapak Desai & Sahil Kanuga, Mediation proceedings are confidential says Supreme Court, Indian Law Journal.
http://indialawjournal.com/volume4/issue_1/article_by_desia_kanuga.html

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the room.  It is a private and confidential mechanism, unlike courts which are open to the public.
Mediation provides the best platform in divorce cases as it helps parties in arriving at a
settlement peacefully.

When we are referring a matrimonial dispute to mediation, it is different from the normal
commercial and property matter disputes. The presence of factors like sentiments, emotions,
social factors, responsibilities, personal duties, the mind-set of the parties regarding the marriage
and life in general makes the matrimonial disputes distinct and different from others.

As opposed to mediation, emotional and irrational factors play an important role in matrimonial
mediation. The considerations have to be weighed beyond the technical aspects. It is the job of
the mediator to consider the emotional aspect as well. Unlike in litigation, the mediator who is
the facilitator here is concerned with the happiness of the parties. Rather than reason, sentiments
play an important role here. The role of the mediator is to arrive at a peaceful settlement that is
not detrimental to the interests of either party. His job is not to reinforce his analysis on the
parties but rather to prepare the parties to arrive at a solution. Mediator also has to act as a
counsellor and a conciliator to help the parties go beyond their personal vendetta against each
other. The goal of meditation is to achieve lasting peace. The purpose of matrimonial mediation
is to reach a consensus between parties towards a solution that is proposed by the mediator or by
either of the parties themselves. The mediator is not a judge or an arbitrator here.

As we know that mediation is a voluntary process, parties can simultaneously resort to litigation
of civil or criminal nature. Stated below are some of the factors that make mediation a more
preferred platform:

(1) it promotes the interest of the entire family including those of the children

(2) it reduces economic and  emotional cost associated with the resolution of the family disputes.

The professional mediator, not attached to the court does not enjoy the power of commanding a
party to his presence. The essential requirement here is that the mediator has to solicit
cooperation from the parties. Parties can voluntarily terminate the mediation proceedings also.
The neutrality, impartiality of mediator plays a key role in the process. As we know the nature of

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marriages in the Indian context, so every attempt at reconciliation has to be carried out before
granting a final decree of divorce.

In the case of Gaurav Nagpal vs Sumedha Nagpal 9, the Supreme Court observed: ‘It is a very
disturbing phenomenon that large numbers of cases are flooding the courts relating to divorce or
judicial separation. The provisions relating to divorce in HMA categorise situations in which a
decree for divorce can be sought for. Merely because such a course is available to be adopted,
should not normally provide incentive to persons to seek divorce, unless the marriage has
irretrievably broken. Efforts should be to bring about conciliation to bridge the communication
gap which lead to such undesirable proceedings. People rushing to courts for breaking up of
marriages should come as a last resort, and unless it has an inevitable result, courts should try to
bring about conciliation. The emphasis should be on saving of marriage and not breaking it. As
noted above it is more important in cases where the children bear the brunt of dissolution of
marriage.’

Though it is on the discretion of court to refer the parties for mediation or conciliation, pre-
litigation counseling has been seen to be more successful. The parties have yet not polarized;
therefore, they have a mindset to arrive at a solution.  Litigation of divorce cases began with
parties mounting claims on each other, which are often exaggerated and based on false facts.
Either side is focused on winning the suit. The strategy to be adopted here should focus on the
counseling or mediation proceedings before the litigation begins.

In a recent judgment by Supreme Court 10, K. Srinivas Rao vs D.A. Deepa, it was held that pre-
litigation mediation should be promoted. In words of the court ‘If all mediation centres set up
pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up
for pre-litigation settlement, many families will be saved of hardship if, at least, some of them
are settled.’ Also, the court said that ‘at the earliest stage i.e. when the dispute is taken up by the
Family Court or by the court of first instance for hearing, it must be referred to mediation
centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc.
are pre-eminently fit for mediation.’

9
AIR 2009 SC 557
10
K. Srinivas Rao vs D.A. Deepa, CIVIL APPEAL NO. 1794 OF 2013

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In this case, the court considered the importance of matrimonial institution and noted it cannot be
said that one spouse is entirely at fault. If parties were sent to mediation at an early stage, the
tensions between the two might not have escalated beyond the point of repair. A proper strategy
is required to promote pre-litigation mediation.

11. NEED OF THE HOUR

Domestic violence is one of the dark realities of our country. Patriarchy and segregation of the
dominant and substitute roles are still a living truth of our society, similarly the verbal, mental
and physical intimidation of male dominant prevail in families. However because of being a
family matter it is considered inappropriate to bring it out in the public. At the center of any
family is the matrimonial relationship, discussing the details of which- even though for problem
solving- is still considered taboo. Thus such matters are kept far from courts. However with the
changing times, even if any matter is brought before the courts it takes infinite time to reach
finality, thus the method of ADR comes to the rescue. ADR being a speedy, confidential, less
formal, party discretionary method makes it easy for the members of the family to resolve the
issue with involvement of third party.

However mediation is generally purposeful and applied in civil cases. Application of mediation
as a dispute resolution method in domestic violence is a debatable issue. There is generally two
set of thoughts for it. One set of people believes that it is worthy to adopt mediation as the
interest of family and trauma of children gets protected. As in the end a family wants to live in
harmony and do not want their children to get harassed from long and complex procedure of
court. Thus the court refers to parties for mediation after the consent of the parties. Agreement of
the parties to opt for mediation is the foremost condition.

The other set of people believes in making abuser to pay for its deeds. As domestic violence is a
criminal act which makes it public issue cannot be solved in private. It will set a wrong example.
They believe in deterrent theory of punishment. A wrongdoer should not be freed from clutches.
of law. Also this will dilute the stringent provisions of law which are made for the protection of
women.

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The Supreme Court also made it clear that it is our Constitutional obligation to ensure that the
backlog of cases is decreased and efforts are made to increase the disposal of cases.11

12. LAWS

Section 498A12 of Indian Penal Code defines domestic violence as an act of cruelty done by
husband or relative of husband on the woman. It is a punishable offence with 2 years of
imprisonment. It is a non-bailable and non-compoundable offence. Under sec-14, of the
Protection of Women from Domestic Violence Act 2005 [PWDVA], magistrate directs to prefer
counseling with qualified and experienced service provider which is referred by courts in
appropriate cases. As can be seen one law prevents matters of domestic violence to be taken for
mediation and other explicitly provides to refer it to counseling. In same way despite
considering the fact that domestic violence is an offence which needs to be punished, courts in
many cases have recognized mediation as an exception in such matters. Though PWDA is a
hybrid law which entails both civil law and criminal law, yet domestic violence is a heinous
crime which is hard to reconcile with the agreement between the parties.
After 1999 amendment in Code of Civil Procedure inclusion of sec 89 made it mandatory for the
courts to refer matter for alternate dispute resolution. Looking into the object of ADR, it has been
adopted to decrease the backlog justice. As rightly said by William E. Gladstone justice delayed
is justice denied. And mediation will reduce the time taken by courts in resolving a dispute. It is
more party oriented as court will refer a case for mediation only after the consent of parties. It is
highly preferred for matrimonial cases. Matrimonial matters of civil nature are worthy to be
referred for mediation.

However the debatable issue is of referring matrimonial matters of domestic violence for
mediation. As on one hand the PWDVA permits mediation under the head counseling in sec 14

11
Brij Mohan Lal vs. Union of India & Others (2002-4-Scale-433), May 6, 2002.
12
498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section,
“cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable security or is on account of failure by her or any person
related to her to meet such demand.

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of the act. But domestic violence under sec 498A IPC is a criminal act. It is a non-
compoundable offence and only High Court under section 482 could permit for compounding of
such offence. Thus, there is conflict in legislation relating to mediation in matters of domestic
violence.

Nonetheless courts have utilized the tool of mediation in such cases of domestic violence.
Recently, Karnataka High Court13 passed an order allowing for quashing of criminal proceedings
against the accused husband. A dispute arose between the husband and wife after the birth of a
girl child, and then there was filing of a divorce petition. The wife also filed a criminal case
against the husband under Section 498A of IPC, 1860 and Sections 3 and 4 of the Dowry
Prohibition Act, 1961. The Court referred the divorce matter to mediation under Section 89 of
the CPC and both parties mutually agreed to a settlement. After this, the wife filed for the
quashing of the criminal proceedings which the Court allowed stating that since the parties have
settled their dispute amicably through mediation, there is no point in proceeding further with the
criminal complaint. In 2014, Karnataka High Court 14 allowed for compounding of offence on the
request of the victim after considering the fact that the victim and the accused had amicably
settled their divorce dispute through mediation.

Both the above orders have relied on a precedent by the Supreme Court 15 where it was held that
“even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court
is satisfied that the parties have settled the same amicably and without any pressure, that for the
purpose of securing ends of justice, Section 320 Cr.P.C. would not be a bar to the exercise of
power of quashing of FIR, complaint or the subsequent criminal proceedings in respect of such
offences can be quashed in exercise of power under Section 482 Cr.P.C”. The approach of the
Court in above cases clearly shows its intention to let the matter settle amicably between the
parties thereby satisfying the first interest as identified above, i.e., to protect the family
relationship and children from the repercussions of a family dispute.

Therefore it can be said that courts are trying strike a balance of power in matter of domestic
violence in matrimonial cases through mediation. as emphasized in case of Smt Padmavathi v.

13
Mohammed Mushtaq Ahmad and Ors. v. State by Kengeri Police Station and Ors. 2015(3) AIR 363
14
Gurudath K. v. Respondent: State of Karnataka MANU/KA/2695/2014.
15
2013) 4 SCC 5

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Sri M Suresh Balla16 that ‘ matrimonial issues must be considered by courts through human angle
and sensitivity. Delicate issue affecting conjugal rights have to be handled carefully’.

Justice Katju also observed that ‘the lawyers should advice their clients to try for mediation for
resolving the disputes, especially where the relationships like family relationships, business
relationships are involved.’17 In the case of Jaya Sagade v. State of Maharashtra18, a circular
issued by the state of Maharashtra dated 24 th July, 2014 was challenged. The circular prevents
parties from resorting to mediation/counseling in matters of domestic dispute before approaching
the court. The court quashed the circular on the grounds of it being discriminatory, arbitrary and
unreasonable.

13. PROBLEMS WITH THE PROCEDURE AND SUGGESTIONS

An argument could be made that on one hand there is an increase in cases related to domestic
violence and the decrease in the conviction rate, but on the other hand, our courts are taking a
lenient approach towards a crime that should have been eliminated long ago. Unintentionally,
court’s approach is leading to two problems.

Firstly, it is promoting the legal recognition of domestic violence but not taking strict actions
against abusers – and sending a negative message in the society. The courts should never allow a
crime to be forgiven just because the criminal cuddles the victim because doing so sends a
negative message to the society that the domestic violence against women can be accepted if the
parties settle their dispute amicably. Just because a victim wants to forgive the accused, it should
not be the ground to quash a criminal proceeding because the crime not only affects the victim
but also affects the society at large.

The Supreme Court of India should reconsider its outlook because domestic violence in not a
crime of private nature rather it is a violent act committed by one citizen against the other citizen
and should not go unpunished. Secondly, the court has also failed to appreciate the fact that a
woman can be forced and intimidated to agree for settlement under Section 89 of the CPC and,

16
ILR 2012 KAR 3926
17
B.S. Krishnamurthy v. B.S. Nagaraj, AIR 2011 SC 794
18
2015[5] Bom CR 633

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subsequently, for quashing of the criminal proceeding or FIR filed under Section 498A of IPC.
The second problem is very likely to arise considering the fact that as per the Census of 2011
more than 83 crore people (out of the then total population of 121 crores) lived in rural areas. 19
And out of these 83 crore people more than 40 crores were females with limited or no access to
education and independent source of livelihood.

Thus a more realistic and objective outlook not only towards the arrival at the remedy is require
but also a better and more rational understanding of the problem at its most basic level need to be
realized.

14. CONCLUSION

The readings for the purpose of this paper indicates not only the aim and scope of ADR to have
been initiated as a procedure in the first place but also highlights the human aspect of the entire
situation. Matrimony, while having secured a sacred status is India is not devoid of the human
atrocities, a direct result of which is domestic violence. The statutes categorize it as a criminal
offence but at the same time allow the use of ADR as a parallel platform, typically employed for
civil cases.

The situation though unique had its own benefits and drawbacks, most of which have been
attempted to be discussed in the paper. It is safe to conclude that we, as a judicial system, still
have long route to encompass to be able to resolve a problem that we should have been able to
get rid of ages ago. The crime though grave is often dealt with a rather light hand due to the
intimate relationship shared between the victim and the accused, often to the point where the
former is dependent on the later. The situation becomes increasingly complicated if children are
involved or in situations where the abuse is a continuing one.

Though some good has come out of the ADR mechanism, unless we can do something about the
problem of delay and huge arrears, the whole system would get crushed under its weight. We
must guard against the system getting discredited and people losing faith in it and taking
recourse to extra legal remedies.

19
Census of India 2011, available at - http://censusindia.gov.in/2011census/censusinfodashboard

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