B.A.LL.B.

(Integrated Law Degree Course)

Project for Alternative Dispute Resolution (IX Semester)

“ALTERNATIVE DISPUTES RESOLUTION: FAMILY AND INDUSTRIAL MATTERS”

Project Submission as the Partial Fulfillment of Periodic Evaluation

Submission To: Submitted By:

Ms. Mona Gupta, Rashmi Chauhan

Asst. Professor, L-171

School of Law, B.A.LL.B (Sem IX)

Raffles University Batch 2019

Raffles University
School of Law
TABLE OF CONTENTS

ACKNOWLEDGMENT ................................................................................................................... 3

INTRODUCTION ........................................................................................................................... 4

ALTERNATIVE DISPUTES RESOLUTION OVERVIEW ..................................................................... 5

FAMILY DISPUTES AND ALTERNATIVE DISPUTE RESOLUTION ................................................... 7

Family Law Arbitration .......................................................................................................... 7

A Brief Introduction of the Indian Family Law System ........................................................ 8

Alternate Methods of Resolution: Benifits............................................................................. 9

Indian Law and Arbitration of Family Matters ...................................................................... 9

Section 89 of the Civil Procedure Code ........................................................................... 10
Order XXXIIA 6 of the Code of Civil Procedure ............................................................ 10

INDUSTRIAL DISPUTES AND ALTERNATE DISPUTE RESOLUTION ............................................... 11

Conciliation .......................................................................................................................... 11
Conciliation Officer .......................................................................................................... 12
Board of Conciliation ....................................................................................................... 12

Arbitration ............................................................................................................................ 12
Voluntary Arbitration ....................................................................................................... 13
Compulsory Arbitration .................................................................................................... 13

Reference Of Dispute To Arbitration Under Industrial Disputes Act,1947 ......................... 13

CONCLUSION............................................................................................................................. 16

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 ACKNOWLEDGMENT

I take this opportunity to express our humble gratitude and personal regards to Ms. Mona
Gupta for inspiring me and guiding me during the course of this project work and also for her
cooperation and guidance from time to time during the course of this project work on the
topic.

Place:- Neemrana. Name of Student:- Rashmi Chauhan

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INTRODUCTION
Human conflict are inevitable .Disputes are equally inevitable. It is difficult to imagine our
human society without conflict of interests. Disputes must be resolved at minimum possible
costs both in terms of money and time, so that more time and more resources are spared for
constructive pursuits.

For resolution of disputes there is a legal system in every legal society, every injured person
is supposed to go to courts for his redressal. All the legal systems are trying to attain a legal
ideal that whenever there is a wrong, there must be a remedy. So that nobody shall have to
take law into his own hands.

In pursuit of redressal which would resolve the dispute at minimum possible costs, both in
terms of money and time. Thus, began the search for an alternative to the conventional court
system.

A large number of quasi-judicial and administrative tribunals have been created for quicker
relief. These tribunals and forums are in a way an alternative method of dispute redressal. But
even such tribunals and forums have become overcrowded with the result that they are not
able to provide relief within good time. Consumer forums came into being to provide quick,
effective and costless relief to buyers of goods and hirers of services. Persons suffering from
poor quality of merchandize and services in the market turned out to be great in number that
consumer redressal forums and commissions have proved to be inadequate to the volume of
complaints

There thus remains a need for an alternative remedy which will not be let down by costs and
delays. Therefore this search for and alternative method of dispute resolution should
culminate in a remedy in which there is minimum role of official authorities and where the
focus is on delivering justice and not on technicalities of the procedural laws.

The Judicial system developed by the Britishers was very expensive and time consuming and
due to these reasons the people’s faith on such legal system was being diminished. After the
independence it was realized that there is need to have such an alternative means of dispute
resolving system or machinery which may be economical and less time consuming1

1
Need for amalgamation of alternative dispute resolution with civil procedure code
http://www.legalindia.in/need-for-amalgamation-of-alternative-dispute-resolution-with-civil-procedure-code

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ALTERNATIVE DISPUTES RESOLUTION OVERVIEW
ADR gives people an involvement in the process of resolving their dispute that is not possible
in a public, formal and adversarial justice system bristled with abstruse procedures and
recondite language of the law. It offers a wide range of choices in method, procedure, cost,
representation and location. It is often quicker than judicial proceedings and helps to ease
burdens on the courts.

The technique of ADR is an effort to design a workable and fair alternative to our traditional
judicial system. It is a fast track system of dispensing justice. There are various ADR
techniques viz. arbitration, mediation, conciliation, mediation-arbitration, mini-trial, private
judging.

These techniques have been developed on scientific lines in USA, UK, France, Canada,
China, Japan, South Africa, Australia and Singapore. ADR has emerged as a significant
movement in these countries and has not only helped reduce cost and time taken for
resolution of disputes, but also in providing a congenial atmosphere and a less formal and less
complicated forum for various types of disputes.

The advantage of ADR is that it is more flexible and avoids seeking recourse to the courts. In
conciliation/mediation, parties are free to withdraw at any stage of time. It has been seen that
resolution of disputes is quicker and cheaper through ADR. The parties involved in ADR do
not develop strained relations; rather they maintain the continued relationship between
themselves.

ADR techniques are extra judicial in character. They can be used in almost all contentious
matters which are capable of being resolved, under law, by agreement between the parties.
They have been employed with various encouraging results in several categories of disputes,
especially civil, commercial, industrial and family disputes. In particular these techniques
have been shown to work across the full range of business disputes :banking ,contracts,
performance and interpretation; construction contracts, Intellectual property rights, insurance
coverage, joint ventures ,partnership differences, personal injury, product liability,
professional liability , real estate and securities .ADR offers the best solution in respect of
commercial disputes of an international character. 2 The traditional attitude of our courts
towards arbitration had been paternalistic almost school-masterly; and with international

2
P.C.Rao : Alternative to litigation in India , ADR-Edited by P.C Rao and William Sheffield

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arbitration there was a generally a lurking suspicion of a revival of foreign dominance in
India.3

3
F.S.Nariman : Arbitration and ADR in India

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FAMILY DISPUTES AND ALTERNATIVE DISPUTE RESOLUTION
All families at certain times experience difficulties which can be termed as a family dispute.
Such disputes range from matters such as disputes between husband and wife, relationship
breakdowns, children’s welfare, financial support for children and property settlement.

The Family Courts Act explains family disputes as:

 A suit between parties to a marriage for decree of nullity, restitution of conjugal

rights, judicial separation or dissolution of marriage.

 A declaratory suit with respect to the matrimonial status of a person.

 A suit between parties in a marriage with respect to the property of the parties or
either of them.

 A suit seeking for an injunction in the event of certain circumstances arising in a

marital relationship.

 A declaratory suit with respect to the legitimacy of any person.

 A suit for financial support or maintenance.

 A suit with respect to the guardianship or custody of a minor.

Family Law Arbitration

Family Law arbitration is a process in which a husband and wife, or ex-husband and ex-wife,
agree to submit one or more issues arising out of their present or prior relations as spouses
and/or their relations as parents of the same child or children, to a neutral third party or
parties for a resolution that will be final and binding on them.4

However family law arbitration is not restricted to spousal matters alone. It also entails
finding a resolution to issues such as custody of children and their welfare, maintenance and
financial support and other ancillary issues.

4
http://skslawfirm.in/matrimonial-family-disputes/

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A Brief Introduction of the Indian Family Law System
The Indian Parliament in order to maintain a secular stance while also enabling religions to
protect themselves has enacted the following family laws which are applicable to the
religious communities defined in the respective enactments themselves:

 The main marriage law legislation in India which is applicable to a majority of the
population is The Hindu Marriage Act, 1955, which is an act to amend and codify
the law relating to marriage among Hindus. It applies to any person who is a
Hindu, Jain, Sikh or Buddhist i.e., anyone who is not a Muslim, Christian, Parsi or
Jew.

Further, with regard to personal matters, Hindus are governed by the Hindu Succession Act
1956 (an act to amend and codify the law relating to intestate succession among Hindus), The
Hindu Minority and Guardianship Act 1956 (an act to amend and codify certain parts of the
law relating to minority and guardianship among Hindus) and the Hindu Adoptions and
Maintenance Act 1956 (an act to amend and codify the law relating to adoptions and
maintenance among Hindus).

 The Special Marriage Act 1954 provides for a special form of marriage in certain
cases, for the registration of such and certain other marriages and for divorces
under this act.

 The Parsi Marriage and Divorce Act of 1936 seeks to govern and regulate the law
relating to marriage and divorce among the Parsis in India.

 The Indian Christian Marriage Act 1872 is an act that consolidates and amends the
law relating to the solemnization of the marriages of Christians in India and the
Indian Divorce Act, 1869 states the law relating to divorce and matrimonial causes
relating to Christians in India.

 The Muslim Personal Law (Shariat) Application Act 1937, The Dissolution of
Muslim Marriages Act 1939, The Muslim Women (Protection of Rights on
Divorce) Act 1986 and The Muslim Women (Protection of Rights on Divorce)
Rules 1986, applies to Muslims living in India.

For the adjudication of all matrimonial and other ancillary disputes a person of any religion
can approach the designated judicial forum as prescribed by the relevant legislation. There is

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an organized system of designated civil and criminal judicial courts within every state in
India which works under the overall jurisdiction of the respective high court in the state.

Furthermore, the Family Courts Act 1984 seeks to provide for the establishment of family
courts with a view to promote conciliation in and to secure speedy settlement of disputes
relating to marriage and family affairs.

Alternate Methods of Resolution: Benifits

Despite the existence of a well-organized and established hierarchy of judicial courts in India,
suits in India including those of family matters suffer a setback owing to inordinate delay.

Judicial proceedings, due to tedious procedures, loopholes in the law and mounting costs take
a long time to resolve. This not only causes inconvenience to the parties involved but also
results in a backlog of cases and overburdening of the courts.

Further, litigation does not always lead to a satisfactory result.5 While it is expensive, it often
ends up in bitterness. Alternative dispute resolution systems are not only cost and time
effective; they preserve the relationship between the parties by encouraging communication
and collaboration.6

Indian Law and Arbitration of Family Matters

All matters which may form the subject-matter of civil litigation affecting the rights, or in
other words all disputes between parties relating to private rights or obligations which civil
Courts may take cognizance within the meaning of Section 9 of the Civil Procedure Code
1908 may be referred to as arbitration.7 This, therefore, makes family disputes suitable for
arbitration. However, this can be done within the limits set by the law. An arbitrator cannot
grant a divorce or an annulment but can decide on certain other things such as how to divide
property.8

At this juncture, it is essential to make a note of two important provisions of the Code of
Civil Procedure:

5
Vini Singh & , Compulsory Mediation for Family Disputes?, 2 The Indian Arbitrator 3 (2010),
http://www.arbitrationindia.org/pdf/tia_2_9.pdf
6
Id
7
J.B. Mills v. Commrl Union Assurance AIR 1979 Cal 56 83 CWN 162
8
Id

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 1. Section 89 of the Code of Civil Procedure: Settlement of disputes outside the
Court

2. ORDER XXXIIA 6 of the Code of Civil Procedure: Suits Relating to Matters

Concerning the Family.

Section 89 of the Civil Procedure Code

In order to implement the 129th Report of the Law Commission of India, all courts were
mandated that once the issues were framed, disputes should be referred either to as
arbitration, conciliation, mediation or judicial settlement for resolution. It was felt that only in
the event of failure of these alternate dispute resolution methods, should litigation proceed.

In accordance with this goal, Section 89 was worded so as to provide parties with an
opportunity to opt for an amicable, out of court settlement.

Order XXXIIA 6 of the Code of Civil Procedure

It is essential to note that all proceedings under the Hindu Marriage Act and the Special
Marriage Act are regulated by the provisions of the CPC. When matters regarding the family
are concerned, an amendment can be made to the Code of Civil Procedure in 1976. This
amendment provided for the mandatory settlement procedures in all matrimonial
proceedings.

At this juncture, it is also indispensable to take a note of Section 9 (1) of the Family Courts
Act which states that ‘In every suit or proceeding, endeavor shall be made by Family Court in
the first instance, where it is possible to do so consistent with the nature and circumstances of
the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-
matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules
made by the High Court, follow such procedure as it may deem fit.’

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INDUSTRIAL DISPUTES AND ALTERNATE DISPUTE RESOLUTION
The three methods for settlement of industrial disputes are as follows:

1. Conciliation

2. Arbitration

3. Adjudication.

Failure of the employees and the employers to sort out their differences bilaterally leads to
the emergence of industrial disputes. The Industrial Disputes Act, 1947 provides legalistic
machinery for settlement of such disputes by involving the interference of a third party.

Conciliation
In simple sense, conciliation means reconciliation of differences between persons.
Conciliation refers to the process by which representatives of workers and employers are
brought together before a third party with a view to persuading them to arrive at an agreement
by mutual discussion between them. The alternative name which is used for conciliation is
mediation. The third party may be one individual or a group of people.

In view of its objective to settle disputes as quickly as possible, conciliation is characterised

by the following features:

(i) The conciliator or mediator tries to remove the difference between the parties.

(ii) He/she persuades the parties to think over the matter with a problem-solving approach,
i.e., with a give and take approach.

(iii) He/she only persuades the disputants to reach a solution and never imposes his/her own
viewpoint.

(iv) The conciliator may change his approach from case to case as he/she finds fit depending
on other factors.

According to the Industrial Disputes Act 1947, the conciliation machinery in India consists of
the following:

1. Conciliation Officer

2. Board of Conciliation

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Conciliation Officer: The Industrial Disputes Act, 1947, under its Section 4, provides for the
appropriate government to appoint such number of persons as it thinks fit to be conciliation
officers. Here, the appropriate government means one in whose jurisdiction the disputes fall.

While the Commissioner /additional commissioner/deputy commissioner is appointed as

conciliation officer for undertakings employing 20 or more persons, at the State level,
officers from central Labour Commission office are appointed as conciliation officers, in the
case of Central government. The conciliation officer enjoys the powers of a civil court. He is
expected to give judgment within 14 days of the commencement of the conciliation
proceedings. The judgement given by him is binding on the parties to the dispute.

Board of Conciliation: In case the conciliation officer fails to resolve the dispute between the
disputants, under Section 5 of the Industrial Disputes Act, 1947, the appropriate government
can appoint a Board of Conciliation. Thus, the Board of Conciliation is not a permanent
institution like conciliation officer. It is an adhoc body consisting of a chairman and two or
four other members nominated in equal numbers by the parties to the dispute.

The Board enjoys the powers of civil court. The Board admits disputes only referred to it by
the government. It follows the same conciliation proceedings as is followed by the
conciliation officer. The Board is expected to give its judgment within two months of the date
on which the dispute was referred to it.

In India, appointment of the Board of Conciliation is rare for the settlement of disputes. In
practice, settling disputes through a conciliation officer is more common and flexible.

Arbitration
Arbitration is a process in which the conflicting parties agree to refer their dispute to a neutral
third party known as ‘Arbitrator’. Arbitration differs from conciliation in the sense that in
arbitration the arbitrator gives his judgment on a dispute while in conciliation, the conciliator
disputing parties to reach at a decision.

The arbitrator does not enjoy any judicial powers. The arbitrator listens to the view points of
the conflicting parties and then gives his decision which is binding on all the parties. The
judgment on the dispute is sent to the government. The government publishes the judgment
within 30 days of its submission and the same becomes enforceable after 30 days of its
publication. In India, there are two types of arbitration: Voluntary and Compulsory.

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Voluntary Arbitration

In voluntary arbitration both the conflicting parties appoint a neutral third party as arbitrator.
The arbitrator acts only when the dispute is referred to him/her. With a view to promote
voluntary arbitration, the Government of India has constituted a tripartite National Arbitration
Promotion Board in July 1987, consisting of representatives of employees (trade employers
and the Government. However, the voluntary arbitration could not be successful because the
judgments given by it are not binding on the disputants. Yes, moral binding is exception to it.

Compulsory Arbitration

In compulsory arbitration, the government can force the disputing parties to go for
compulsory arbitration. In other form, both the disputing parties can request the government
to refer their dispute for arbitration. The judgment given by the arbitrator is binding on the
parties of dispute.

Reference Of Dispute To Arbitration Under Industrial Disputes Act,1947

In Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate9, the SC stated the principal
objects of the I.D. Act as follows:

1. For preserving amity and securing good relations between employer and workmen,
promotion of measures;

2. The investigation into and the settlement of industrial disputes between employers
and employees, employers and workmen or workmen and workmen, with a right of
representation by a registered TU or a federation of TU or an association of employers
or federation of associations of employers10;

3. Prevention of illegal strikes and lockouts

4. In matters of lay off of retrenchment, providing relief to workmen

5. Ensure collective bargaining11

In Sindhu Hochtief(India) Pvt Ltd Vs Pratap Dialers12, the court held that the dispute as to
what should happen to the undistributed bonus will not fall within the definition of an
industrial dispute as defined in section 2(k) of the Industrial Disputes Act.

9
(1958) 1 LLJ 500 SC.
10
K Alexander , Collective Bargaining in Industrial Labour in India 384-85(1963).
11
O.P.Malhotra , The Law of Industrial Disputes(6th ed, 2004)

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An agreement, to refer an industrial dispute to an arbitrator under section 10-A is not a
settlement of the disputes as laid down in section 2(p) of the I.D Act because the dispute
subsists after the agreement. The solution to the dispute will be the award given by the
arbitrator. Industrial dispute may be said to be in controversy with respect to working
conditions, employment matters, wages or union recognition.13 There are different forms and
causes of industrial dispute. The term industrial dispute in the Industrial Dispute Act, 1947
has the following features:

1. There should be dispute

2. It could be between employer-employer, employer-employee or employee-employee.

3. The dispute must be related to work related issue.

4. The dispute must be raised by a group or class of workers.14

There are various methods of settling industrial dispute. It may be without state intervention
by Collective bargaining i.e. without conciliation or with conciliation or by voluntary
arbitration. The Industrial Disputes Act along with providing machinery for investigation and
settlement of disputes, provides measures for prevention of conflicts. If the industrial disputes
are not settled by collective bargaining or works committees or by bipartite negotiations, the
Industrial Disputes Act provides the following authorities;

Conciliation Officer and Board of Conciliation, Voluntary Arbitration, Adjudication by labor

court, Industrial Tribunal and National Tribunal.15

Arbitration refers to negotiations in which parties are encouraged to negotiate directly with
each other prior to some other legal process. Arbitration systems authorize a third party to
decide how a dispute should be resolved.16

Arbitration process may be either binding or non-binding. Binding arbitration produces a

third party decision that the disputants must follow although they disagree with the result.

Non-binding arbitration produces a third party decision that the parties may reject.

12
(1968) 2 LLJ 515(Bom)
13
H L Kumar , Labour Problems and Remedies, (10th Ed, 2012)
14
H K. Sahney ,Textbook on labour and industrial law,( 5th ed., 2011)
15
P.R.N. Sinha, Industrial relation, Trade union and legislations, (1st ed.)
16
P.K. Padhi , Labour law and industrial relations, (2007)

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ADR process may be mandatory and they may be required as part of a prior contractual
agreement between parties. In voluntary process, submission of a dispute to an ADR process
depends entirely on the will of the parties.17

In voluntary arbitration, the parties willingly refer their dispute to a third party. The essentials
include, there should be voluntary submission of dispute, investigation and attendance of
witness. It may be specially arising under disagreement of contracts or agreements. There is
no compulsion in this case.18

In compulsory arbitration, it has to be accepted mandatorily. It is entirely based on voluntary

discretion of the appropriate government based on the dispute.19 The essentials of compulsory
arbitration consists that the parties should fail to arrive at a settlement by voluntary method, if
there is grave economic crisis, there is grave public dissatisfaction, any national emergency
or if parties are ill balanced and public interest is of prime importance. It leaves no scope for
strikes or lockouts. Moreover it deprives both the parties of their fundamental rights.20

The ADR process is extra judicial in nature. ADR is informal, there is application of equity,
and there is direct participation and communication between disputants.21

17
Sandeep Puri, Labour Laws for everyday made easy,( 4th ed, 2013)
18
O.P Malhotra’s, The Law Of Industrial Disputes,( 3rd ed, 2013)
19
Vincent P. Crawford ,On Compulsory-Arbitration Schemes,Journal of Political Economy, Vol. 87, No. 1
(Feb., 1979), pp. 131-159, The University of Chicago Press,
Available at http://www.jstor.org/stable/1832213 .
20
I. Sharath Babu and Rashmi shetty, Social jurisprudence and labour jurisprudence ,
(1st ed. 2007)
21
P.L. Malik, K.D. Srivastava's Commentaries on Industrial Employment (Standing
Orders) Act, 1946, (4th ed., 2012)

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CONCLUSION
“Discourage litigation; persuade your neighbors to compromise, whenever you can. Point out
to them the normal winner is often a real loser; in fee, expenses and waste of time. As a peace
maker, the lawyer has a superior opportunity of being a good person.”22

ADR represents only a change in forum, not in the substantive rights of parties.ADR is not
intended to supplant altogether the traditional means of resolving disputes by means of
litigation. It only trades the procedures and opportunity for review of the courtroom for the
simplicity, informality and expedition of ADR. The primary object of ADR is avoidance of
vexation, expense and delay and the promotion of the ideal of “excess to justice”.

ADR is based on more direct participation by the disputants rather than being run by lawyers
and judges. This type of involvement is believed to increase people’s satisfaction with the
outcome and as well as with their compliance with the settlement reached. Most ADR
process is based on an integrative approach. They are more co-operative and less competitive
than adversarial court based method like litigation. For this reason ADR tends to generate
less escalation and ill-will between parties.

Ethical issues should be given due regard while administrating the ADR techniques. The
integrity and fairness of the ADR process should be maintained .The faith reposed by the
parties in the ADR system by agreeing to resolve their disputes through ADR should be
respected; otherwise an attempt to put in an ADR mechanism would become futile.23

The framework of ADR mechanism that has emerged is comprehensive. But its success
depends much on the will of the people to work it up in the right spirit and with good faith.
Serious efforts to shift to ADR deserve to be made. The parties have to be made aware of the
advantage of adopting an ADR mechanism. Unfortunately one or the other party is interested
in delay and is not bothered either about the cost or consequences and would not hesitate to
take a false, unethical and wholly unprincipled stand to benefit from the delay. Therefore
ADR as a tool for dispute resolution can only work if the attitude of the parties to
unnecessary litigation changes.

The twin benefits of ADR mechanisms are essentially time and money. A satisfactory
solution is an added bonus.

22
Abraham Lincoln , President United States of America
23
Supra note 21

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