Beyond litigation: - A safer and more effective approach to settling domestic violence
disputes through ADR.
Domestic violence is considered one of the threats to individuals. It has profound
implications for the victims which can hamper the physical, emotional, and psychological
well-being of the person. In India, the Parliament of India has given protection to women by
legislating the Act called Protection Of Women From Domestic Violence Act, 2005
( hereinafter called the Act). The main objective of the Act is to protect the wife or female
live-in partner from the acts of her husband or male live-in partner. Now the question arises
what mechanism should be adopted by the female to settle the dispute against her husband or
any male live-in partner? Whether to adopt the traditional approach to get justice or the
process of ADR is fruitful in the present times. Now we move further and try to understand
the gateway to settle the dispute through ADR.“Mediate do not litigate” These are the golden
lines that try to preserve the social fabric of any relations. As we all know using traditional
mechanisms to settle disputes through litigation is very time-consuming. Earlier, litigation is
seen as the last resort to get justice. But today ADR has gained attention in recent years.
Section 89 of the Code of Civil Procedure, 1908 is considered one of the most effective ways
to settle the dispute outside the court. It is not wrong to say that ADR helps ease the burden of
the courts which are already burdened while simultaneously providing active participation to
get justice. Before filing any civil suits, the plaintiff is bound to pay the court fees, and if
he/she has not paid the court fees he is not entitled to get any relief unless he shows him as a
pauper. However, the beauty of ADR is that parties don’t have to pay the court fees in the
mediation process. This is also one of the advantages of taking the recourse of ADR in
present times. It is of utmost importance that ethical consideration and safeguards should not
be ignored rather it ensures that fair and equitable mechanisms should be adopted by using
ADR to settle disputes for example:- confidentiality protocols, and informed consent
procedures and there should not be any form of bias towards the party. If the parties find at
any stage of the proceedings of ADR then the parties should have the power to terminate the
proceedings and seek for the de novo mechanism1.
1
Malhotra, A., & Malhotra, R. (2012). ALTERNATIVE DISPUTE RESOLUTION IN INDIAN FAMILY LAW - REALITIES,
PRACTICALITIES AND NECESSITIES. Retrieved from
https://www.iafl.com/media/1129/alternative_dispute_resolution_in_indian_family_law.pdf
It is interesting to note that Section 89 of the Code of Civil Procedure,1908 was earlier
repealed after the coming into force of the Indian Arbitration Act, 1940, and now it has been
inserted by the amendment Act of 19992. This provision is inculcated by the Mali math
committee and the 129th Law Commission report advocating timely justice. The interplay of
The Family Courts Act, 1984, and The Protection Of Women From Domestic Violence Act,
2005. One of its key objectives is to promote Conciliation and mediation in family matters 3.
The Act encourages ADR techniques like mediation to resolve disputes like divorce, and
child custody. It is pertinent to note that the family court judges are more inclined to refer the
parties to mediation before proceeding with the formal trial. The first and foremost question
is whether the ADR like mediation the right way to resolve cases of Domestic violence.
Choosing the mechanism of ADR can be the mode of getting justice or is just a compromise
between the parties which makes them hidden victims of that compromise. How is the
Judiciary in India taking appropriate measures to deal with such types of cases? Can we say
that all the matters can be settled by adopting the recourse of ADR or are there any
exceptions in which certain types of offenses can be compromised? In one of the judgments
of the Delhi High Court the honorable court has also said justice is not for sale 4 so can we
suggest that referring parties to the mediation centers and settling the case on monetary
benefits will lead to justice for sale.
In a nutshell, it can be said that mediation can be considered as one of the best modes to settle
the dispute outside the courts but it needs to be regulated by the change which is required.
Every case is governed by its facts and circumstances. Therefore, different lenses are required
to see the dispute with different parameters. If the case is serious, it should not be mediated
by the mechanism of ADR.
Keywords: - Alternative Dispute Resolution (ADR), Domestic Violence, Mediation, Family
Dispute Resolution, Shuttle Mediation
2
CODE OF CIVIL PROCEDURE AMENDMENT.
3
B.S KRISHNA MURTHY V B.S NAGRAJ AIR 2011 SC 794.
4
https://www.thehindu.com/news/cities/Delhi/justice-not-for-sale-says-delhi-hc-while-refusing-to-quash-fir-
after-monetary-settlement/article68359860.ece
