Supreme Court Judge Justice B.V. Nagarathna on Friday underscored the need to view mediation and adjudication as complementary components of the justice delivery system in family disputes, cautioning that alternative dispute resolution cannot be allowed to supplant legal rights and entitlements, particularly those of women.
Justice Nagarathna, who chairs the Supreme Court Committee for Family Court Matters, was delivering the inaugural address at the Eastern Zone Regional Conference on “ADR vs Adjudication in Family Disputes: Challenges and Way Forward”, organised by the Committee in association with the Gauhati High Court.
At the outset, Justice Nagarathna questioned whether the theme itself suggested an inherent conflict between ADR and adjudication. She observed that alternative dispute resolution mechanisms were never intended to replace courts but should instead complement adjudication in the larger pursuit of justice. In family disputes, she noted, ADR can offer distinct advantages, including speed, privacy and confidentiality.
Drawing attention to the substantial pendency before Family Courts, the judge noted that, as of October 2024, 822 Family Courts were functioning across the country. Bihar accounted for 70,365 pending cases, followed by Odisha with 36,792, Jharkhand with 15,376 and Assam with 7,399 cases.
Justice Nagarathna said the challenge was to determine how ADR could be deployed strategically to address such pendency while preserving the quality and fairness of outcomes. She posed two fundamental questions—where and why adjudication fails, and how ADR can mitigate those shortcomings.
“What is the need of the hour however is a precise approach that identifies which mechanism suits which dispute, at which stage, and subject to what safeguards,” she said.
The judge also drew attention to the fragmented nature of litigation arising from family disputes under different statutory frameworks, including the Family Courts Act, the Protection of Women from Domestic Violence Act, 2005 and the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
Families, she observed, do not experience their crises through separate jurisdictions or statutory compartments but within the same household. Proceedings under different enactments can consequently result in multiple cases before different forums and, at times, conflicting orders.
Justice Nagarathna suggested that where proceedings concerning a single household are instituted under these three laws, the cases should be identified at the filing stage itself. If considered suitable for mediation, they should be referred together to a single mediator, with one judicial officer retaining overall oversight.
“It is the family, and not the cause of action, which requires resolution,” she observed.
She further proposed the establishment of a dedicated geriatric mediation panel in every District Legal Services Authority to facilitate resolution of disputes involving senior citizens.
On matrimonial disputes concerning divorce and restitution of conjugal rights, Justice Nagarathna advocated greater reliance on pre-litigation mediation under Section 5 of the Mediation Act, along with mandatory conciliation under Section 9 of the Family Courts Act at the first hearing.
While emphasising the advantages of mediation, Justice Nagarathna made it clear that mediation cannot become a substitute for adjudication where legal rights require determination. She was particularly emphatic about protecting the bargaining position of women.
“But, mediation is not meant to be substituted for adjudication and a woman’s bargaining position is worth precisely what her legal entitlement is worth,” she said.
She identified four principal costs of prolonged litigation for women financial and time burdens, questions of enforceability, limitations inherent in the court system and the erosion of dignity. At the same time, she observed that the confidential and private character of mediation can help minimise the adverse impact of prolonged proceedings on a woman’s dignity.
Justice Nagarathna also reflected on the manner in which Family Courts have evolved in practice. Although conceived as forums that would move away from conventional adversarial litigation, she noted that they have increasingly come to function as civil courts, albeit under a different nomenclature.
She called for the establishment of permanent counselling units staffed by psychologists, mandatory sensitisation training for judges and fuller utilisation of funds made available for video-conferencing facilities.
Concluding her address, Justice Nagarathna observed that India was yet to develop a system capable of effectively integrating ADR with adjudication so as to secure timely resolution in cases where speed is essential, without compromising substantive justice.
The objective, she emphasised, should be to ensure that the choice between ADR and adjudication is not treated as an either-or proposition, but that each mechanism is deployed appropriately, with necessary safeguards, to secure meaningful and just outcomes in family disputes.
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