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2011 DIGILAW 381 (AP)

In Re : Matrimonial Matters v. .

2011-04-27

B.PRAKASH RAO, G.BHAVANI PRASAD

body2011
JUDGMENT G. Bhavani Prasad, J. 1. During the course of hearing of matters arising out of matrimonial disputes, it was observed that the records mostly did not disclose any attempts for reconciliation between the parties made by the trial Courts and appellate Courts notwithstanding the specific provisions of law in this regard. 2. It was, therefore, felt that relevant statistical particulars should be obtained in order to issue necessary directions concerning appropriate steps to be taken by the Courts in this regard. Accordingly, the Registry of the High Court collected information from all the Courts in the State and reported that the total cases involving matrimonial disputes were 8,396 out of which in 123 cases, no steps were taken for reconciliation. Though in the remaining cases the information was suggestive of steps being taken for reconciliation, the information was mostly vague, indefinite and general and not specific as to what was done in discharge of the solemn duty of the Court in this regard. Reference to the Legal Services Authorities or Legal Services Committees under the Legal Services Authorities Act, 1987 or Lok Adalats constituted by such Authorities or Committees was also stated in a significant number of cases to be the step taken by the Court for attempting reconciliation and nothing further was claimed by the concerned Courts to have been done in this regard except making a reference to such Authorities or Committees or Lok Adalats. 3. A report had also been received from the Andhra Pradesh State Legal Services Authority, which stated that matters are being entrusted to mediators on the panels with the Authorities on receipt of matters from the Courts, who are conducting mediation in such number of sittings as may be necessary to assist the parties to explore the possibilities of amicable settlements. If settled, agreements signed by the parties are being executed and forwarded to the Court concerned. The Authority also stated that in prelitigation matters, on receipt of applications, notices are being issued to all the parties concerned to appear before the mediators and if the parties appeared, mediation is being conducted on the same lines and the matter is being referred to the Court having jurisdiction to dispose of the case in accordance with the agreement between the parties. 4. 4. The Member Secretary of the Andhra Pradesh State Legal Service Authority also stated in his report that 11 mediation centres were set up in the State at Hyderabad, Ranga Reddy District, Warangal, Karimnagar, Kadapa, Chittoor at Tirupati, Guntur, Krishna at Vijayawada, East Godavari at Rajahmundry, Visakhapatnam and High Court Legal Services Committee, Hyderabad as directed by the National Legal Services Authority and training was also imparted to the officers of the Legal Services Authorities and Committees and mediators by the Supreme Court Mediation and Conciliation Project Committee for 40 hours each. The statistical information furnished shows that 282 matters were referred by the Courts to the Authorities and Committees, while 317 matters were pre-litigation matters. 5. Sri G. Vidya Sugar, Smt. M. Bhaskara Lakshmi and Sri J. V. Suryanarayana, Senior Counsel assisted by Sri T. Lakshminarayana were the learned Counsel who had been gracious enough to assist the Court in consideration of the matters at the request of the Court. 6. Sri J. V. Suryanarayana and Sri T. Lakshminarayana suggested incorporating an additional rule in the rules framed by the High Court under the Andhra Pradesh Hindu Marriage Act, 1955 and the Civil Rules of Practice and addition of a proviso to Order XLIII Rule 2 of the Code of Civil Procedure, 1908, which are as follows: 15-A 1. In all matrimonial matters, the Court hearing such a proceeding under the Hindu Marriage Act, 1955, shall, as soon as may be after both the parties have entered appearance, consistently with Section 23(2) of the Act, ascertain a day convenient to both the parties, and post the petition to that day for ascertaining whether reconciliation is possible between the parties and an order may be passed on such reconciliation. 2. If it appears to the Court that reconciliation is possible if further time is granted, the Court may do so. 3. On all such dates when the matter is posted for reconciliation, the Court shall speak to the parties, ascertain their views and record the proceedings briefly in the B diary. 4. The Court shall explain to the parties that, if the petition is taken up for enquiry and decided on merits, these proceedings shall not be taken into consideration. 5. Every judgment in a matrimonial proceeding shall contain a reference to the fact that such proceedings for reconciliation were taken, but did not succeed. 6. 4. The Court shall explain to the parties that, if the petition is taken up for enquiry and decided on merits, these proceedings shall not be taken into consideration. 5. Every judgment in a matrimonial proceeding shall contain a reference to the fact that such proceedings for reconciliation were taken, but did not succeed. 6. Nothing in this rule shall prevent the Court from taking steps for reconciliation at any further stage. Proviso: Provided however that in all matters arising under the Hindu Marriage Act, 1955, the Bench hearing the appeal against any order made under the Act, shall fix a day for the appearance of the parties for the purpose of attempting to bring about a reconciliation between the spouses and on their appearance ascertain their views, before proceeding further in the case. 7. Smt. M. Bhaskaralakshmi also suggested incorporation of an additional rule in the rules framed by the High Court under the Family Court Act, 1984 and the Hindu Marriage Act, 1955, apart from taking certain administrative steps. The suggested rule is as follows: In any petition filed under the Hindu Marriage Act, 1955 not being one under Sections 13 ii, iii, iv, v, vi and vii after the respondent has entered his/her appearance, the Court in every case shall make an endeavour to bring about reconciliation between the parties. As a part of this endeavour the Court for the purpose of conciliation proceedings refer the matter to the concerned Legal Service Committee for placing the same before the mediators and call for the report form the mediators regarding the conciliation proceedings. The Court can adjourn the matter giving time for the purpose of conciliation proceedings before the mediators. If the matter is settled before the mediators, on receiving the said report the Court shall record the same. In case the matter is not settled, even after the conciliation efforts by the mediators, the Court shall once again put forth effort for conciliation. In doing so the Court shall fix a date for conciliation and on the day so fixed shall make' all the endeavour for conciliation between the parties by way of counselling after ascertaining their views. If the conciliation efforts fail, the Court shall record the same and proceed with the matter. 8. In doing so the Court shall fix a date for conciliation and on the day so fixed shall make' all the endeavour for conciliation between the parties by way of counselling after ascertaining their views. If the conciliation efforts fail, the Court shall record the same and proceed with the matter. 8. Smt. M. Bhaskaralakshmi also desired that necessary directions may also be given to the Andhra Pradesh State Legal Services Authority to appoint mediators in all legal services committees wherever such mediators are not yet appointed. 9. The legal background for the entire consideration has its basis in Section 23(2) of the Hindu Marriage Act, 1955, Order XXXII-A Rule 3 of the Code of Civil Procedure, 1908, Section 9 of the Family Courts Act, 1984 and Section 89 and Order X Rule 1-A of the Code of Civil Procedure, 1908 apart from the Legal Services Authorities Act, 1987. 10. Sub-sections (2) and (3) of Section 23 of the Hindu Marriage Act, 1955 are as hereunder: (2) Before proceeding to grant any relief under this Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Clause (ii), Clause (iii), Clause (iv), Clause (v), Clause (vi) or Clause (vii) of sub-section (1) of Section 13. (3) For the purpose of aiding the Court in bringing about such reconciliation, the Court may, if the parties so desire or if the Court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the Court if the parties fail to name any person, with directions to report to the Court as to whether reconciliation can be and has been, effected and the Court shall in disposing of the proceeding have due regard to the report. 11. 11. The provision received extensive consideration of the apex Court in Jagraj Singh v. Birpal Kaur, (2007) 2 SCC 564 , wherein the apex Court referred to Annapurna v. R. Saikumar (1981 Supp SCC 71), wherein it was advised that every possible effort must be made so as to restore the conjugal home and bring back harmony between the husband and the wife. The apex Court made an experiment in creating mutual confidence in that case and some amount of efforts by the Counsel for the parties, discussion, persuasion and suggestion made the parties agree to live together in a separate house. 12. The apex Court observed in Jagraj Singh v. Birpal Kaur (supra) that the approach of a Court of law in matrimonial matters is much more constructive, affirmative and productive rather than abstract, theoretical or doctrinaire. The apex Court advised that matrimonial matters must be considered by Courts with human angle and sensitivity and delicate issues affecting conjugal relations have to be handled carefully and legal provisions should be construed and interpreted without being oblivious or unmindful of human weaknesses. The apex Court, referred to the decisional law from various High Courts in this regard and found it clear that a Court is expected, nay, bound, to make all attempts and endeavours for reconciliation and sub-section (2) of Section 23 is a salutary provision exhibiting the intention of Parliament requiring the Court "in the first instance" to make every endeavour to bring about a reconciliation between the parties. The benevolent provision was considered repulsive to the argument that the matrimonial Court has no such power to ask a party to the proceeding to remain personally present, as otherwise the provision becomes nugatory, ineffective and unworkable, defeating the laudable object of reconciliation in matrimonial disputes. 13. The purpose of the provision was, in fact, considered by this Court long back in Revana Chakradhara Lakshmi v. Revana K. Durvasulu, AIR 1966 (A) 73, wherein it was pointed out that reconciliation, which could be brought about between the parties, can only be in the shape of bringing the parties together and make them live together and that is achieved only by granting restitution of conjugal rights. The Court observed that it is only in cases where the relief of judicial separation or divorce is asked for by one of the parties, the Court should try to avoid the granting of a relief and see if it is possible to bring them together. 14. The rules to regulate proceedings under the Hindu Marriage Act, 1955 made by the High Court do not have any corresponding rule to Section 23 sub-sections (2) and (3) as to the manner in which the endeavour to bring about reconciliation between the parties should be made. 15. At the time of making extensive amendments to the Code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act, 1976, Central Act 104 of 1976, it was felt that ordinarily judicial procedure is not ideally suited to the sensitive area of personal relationships. The statement of objects and reasons for the enactment stated that litigation concerning or involving affairs of the family, therefore, seems to require special approach in view of the serious emotional aspects involved and in the circumstances, the objective of the family counselling as a method of achieving the ultimate object of preservation of the family should be kept in the forefront. The statement of objects in respect of the original Clause 83/Clause 80, therefore, stated that the new Order XXXII-A seeks to highlight the need for adopting a different approach where matters concerning the family are at issue, including the need for efforts to bring about an amicable settlement. 16. Suits or proceedings relating to the matters concerning the family in general with particular reference to suits or proceedings concerning the family of the nature prescribed in sub-rule (1) of Rule 2 of Order XXXII-A are governed by the said order, the word 'family' being defined for purposes of the same in Rule 6 of the said order without prejudice to the concept of family in any personal law or in any other law for the time being in force. Rule 3 in particular makes it the duty of the Court to make efforts for settlement as follows:-- R.3. Rule 3 in particular makes it the duty of the Court to make efforts for settlement as follows:-- R.3. Duty of Court to make efforts for settlement--(1) In every suit or proceeding to which this order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit. (2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement. (3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings. 17. Rule 4 enables the Court to secure the assistance of welfare expert in discharging the functions imposed by Rule 3. 18. In Jagraj Singh v. Birpal Kaur (supra), the apex Court referred to the special provisions made in respect of suits relating to matters concerning the family in Order XXXII-A Rule 3 of the Code of Civil Procedure, 1908. 19. The provisions of Order XXXII-A of the Code of Civil Procedure, 1908 were found to have not been utilized much, leading to the Family Courts Act, 1984. 20. The statement of objects and reasons for the Family Courts Act, 1984 (Central Act No.66 of 1984) explicitly explained as to why the need was felt, in the public interest, to establish Family Courts for speedy settlement of family disputes as follows:-- Several associations of women, other organizations and individuals have urged, from time to time, that Family Courts be set up for the settlement of family disputes, where emphasis should be laid on conciliation and achieving socially desirable results and adherence to rigid rules of procedure and evidence should be eliminated. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceeding relating to matters concerning the family. However, not much use has been made by the Courts in adopting this conciliatory procedure and the Courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. 21. The Family Courts Bill was stated in Para 2(e) and (f) of the statement of objects and reasons to be seeking to make it obligatory on the part of the Family Court to endeavour, in the first instance, to effect a reconciliation or a settlement between the parties to a family dispute and during this stage, the proceedings will be informal and rigid rules of procedure shall not apply; and to provide for the association of social welfare agencies, counsellors, etc., during conciliation stage and also to secure the service of medical and welfare experts. 22. The preamble to Family Courts Act, 1984 is also clear that the Act was "to provide for the establishment of the Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith". 23. Section 4 sub-section (4) of the Act mandated that in selecting the persons for appointment as Judges, every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected. Social welfare agencies and organizations were sought to be associated with the exercise by Section 5 in order to enable a Family Court to exercise its jurisdiction more effectively in accordance with the purposes of the Act. The State Government is obliged to provide the Family Court with required number of counsellors by virtue of Section 6. Social welfare agencies and organizations were sought to be associated with the exercise by Section 5 in order to enable a Family Court to exercise its jurisdiction more effectively in accordance with the purposes of the Act. The State Government is obliged to provide the Family Court with required number of counsellors by virtue of Section 6. In all suits and proceedings covered by the Explanation to Section 7 within the jurisdiction of the Family Court, it is the duty of the Family Court to make an endeavour 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. The duty cast on the Family Court by sub-section (1) of Section 9 is further expanded by sub-section (2) providing for adjournment of the proceedings in the discretion of the Family Court to enable attempts to be made to effect a settlement between the parties where there is a reasonable possibility of the same at any stage of a suit or proceeding and by sub-section (3), which clarified that the power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings. Even procedural constraints are removed from the way of the Family Court in this regard by sub-section (3) of Section 10, which enabled a Family Court to lay down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other, notwithstanding anything in sub-sections (1) and (2) of Section 10. Section 12 of the Act gives liberty to the Family Court in securing the services of medical and welfare experts for assistance in discharging the functions imposed by the Act. Section 21(2)(c) enables the High Court to make rules as may be deemed necessary for providing for efforts which may be made by, and the procedure which may be followed by, a Family Court for assisting and persuading parties to arrive at a settlement. 24. Section 21(2)(c) enables the High Court to make rules as may be deemed necessary for providing for efforts which may be made by, and the procedure which may be followed by, a Family Court for assisting and persuading parties to arrive at a settlement. 24. In K.A. Abdul Jaleel v. T.A. Shahida, 2003 (3) ALD 114 (SC) : (2003) 4 SCC 166 , the Supreme Court was referring to the said Act being enacted despite the fact that Order XXXII-A of the Code of Civil Procedure was inserted by reason of the Code of Civil Procedure Amendment Act 1976, which could not bring about any desired results. It is also noted that the Family Courts Act 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 matters connected therewith, which was held to be liable for a broad construction and not a restricted meaning, which would frustrate the object, wherefore the Family Courts were set up. 25. The High Court of Andhra Pradesh Family Courts (Court) Rules, 2005 prescribed by the High Court of Andhra Pradesh to regulate the proceedings of the Family Courts in the State of Andhra Pradesh, deal with the role of the counsellor in Rule 18, duties and functions of a Counsellor in Rule 19, confidentiality of information in Rule 20, Counsellor's right to supervise custody of children in Rule 21, settlement before counsellors in Rule 23, Experts, institutions, etc., in Rules 24 and 25 and the efforts for arriving at settlement in Rule 26. Rule 26 in particular enables a Family Court to call for a report from an institution, organization or persons as regards efforts made or to be made for amicable settlement and where such efforts are continuing or are deferred, the Family Court may require submission of an interim report also. The Family Court can also ask the counsellor to submit an interim report of the purposes of such an application before deciding an interim application under Rule 39. 26. Central Act 46 of 1999 inserted Section 89 and Rules 1A to 1C of Order X into the Code of Civil Procedure, 1908 providing for settlement of disputes outside the Court and direction of the Court to opt for any one mode of alternative dispute resolution. 26. Central Act 46 of 1999 inserted Section 89 and Rules 1A to 1C of Order X into the Code of Civil Procedure, 1908 providing for settlement of disputes outside the Court and direction of the Court to opt for any one mode of alternative dispute resolution. The provisions are as under,-- Section 89. Settlement of disputes outside the Court..--(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for- (a) arbitration; (b) conciliation; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation. (2) Where a dispute has been referred- (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of Section 20 of the Legal Services Authorities Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authorities Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. Order X: 1A. Direction of the Court to opt for any one mode of alternative dispute resolution.--After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of Section 89. On the opinion of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties. 1B. On the opinion of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties. 1B. Appearance before the conciliatory forum or authority.--Where a suit is referred under Rule 1A, the parties shall appear before such forum or authority for conciliation of the suit. 1C. Appearance before the Court consequent to the failure of efforts of conciliation.-- Where a suit is referred under Rule 1A and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the Court on the date fixed by it. 27. The challenge to the said and other amendments was dealt with by the Supreme Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2003 SC 189 , and it was observed that it is quite obvious that the reason why Section 89 has been inserted is to try and see that all the cases which are filed in Court need not necessarily be decided by the Court itself. Keeping in mind the laws delays and the limited number of Judges available, it was observed imperative that resort should be had to alternative dispute resolution mechanism with a view to bring an end to litigation between the parties at an early date. The apex Court noted that sub-section (2) of Section 89 referred to different Acts in relation to arbitration, conciliation or settlement through Lok Adalat (Arbitration and Conciliation Act 1996, Central Act 26 of 1996, and Legal Services Authorities Act, 1987, Central Act 39 of 1987) and Section 89(2)(d) of the Code of Civil Procedure providing for the parties to follow the procedure as may be prescribed with regard to mediation, contemplates appropriate rules being framed with regard to mediation. The apex Court also observed that effort has to be made to bring about an amicable settlement between the parties and the case will ultimately go to trial, if it is not possible despite efforts. The apex Court constituted a Committee for devising a model case flow management formula and rules and regulations which should be followed while taking recourse to the ADR referred to in Section 89. 28. The apex Court constituted a Committee for devising a model case flow management formula and rules and regulations which should be followed while taking recourse to the ADR referred to in Section 89. 28. The reports of the Committee so constituted headed by Hon'ble Sri Justice M Jagannadha Rao, a former Judge of the Supreme Court of India and Chairman of Law Commission of India, were under consideration of the apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, 2005 (5) ALD 1 (SC) : AIR 2005 SC 3353 . Considering the second report of the Committee and the power of the High Court to make rules under Sections 122 to 125 of the Code of Civil Procedure, the apex Court stated that it is for the respective High Courts to take appropriate steps for making rules in exercise of the rule making power subject to modifications, if any, which may be considered relevant in the draft Civil Procedure Alternative Dispute Resolution and Mediation Rules as framed by the Committee. The third report of the Committee suggesting Model Case Flow Management Rules was also considered by the apex Court, which commended the rules to High Courts for examination, discussion and consideration for adopting and making the rules with or without modification. 29. The said Model Case Flow Management Rules suggested in Rule 5 that the suit shall be listed before the Court after completion of admission and denial of documents by the parties, for examination of parties under Order X of the Code of Civil Procedure, before which date a joint statement of admitted facts shall be filed before the Court and the Court shall thereafter follow the procedure prescribed under the Alternative Dispute Resolution and Mediation Rules. Rule 6 of the said Model Rules further provided, in case of failure of Alternative Dispute Resolution, that even when the suit is listed after failure of the attempts, the Judge may merely inquire whether it is still possible for the parties to resolve the dispute, which should be invariably done by the Judge at the first hearing when the matter comes back on failure of Alternative Dispute Resolution. Only when the parties are not keen about the settlement, the Court will proceed further. Only when the parties are not keen about the settlement, the Court will proceed further. Even then, the rule mandates that possibility of further negotiation and settlement should be kept open and if such a settlement takes place, it should be open to the parties to move for getting the matter listed at an earlier date for disposal. 30. The Model Case Flow Management Rules appear to be still under examination of the High Court of Andhra Pradesh and the said Model Rules with or without modification are yet to be adopted and made into rules. 31. However, insofar as the Civil Procedure Alternative Dispute Resolution and Mediation Rules suggested by the Committee are concerned, they are incorporated in Chapter XX of the Civil Rules of Practice and Circular Orders, 1980 in two parts from Rule 307 to Rule 340, which are deemed to have come into force with effect on and from 22.2.2006 as notified under G.O. Ms. No.40 Law (LA&J-Home Courts.D) Department, dated 2.4.2008. Rule 313 of the said rules specifically provides that the provisions of these rules may be applied to proceedings before the Courts, including Family Courts constituted under Family Courts Act (66 of 1984), while dealing with matrimonial, maintenance and child custody disputes, wherever necessary, in addition to the rules framed under the Family Courts Act. Rule 307 directs the procedure directing parties to opt for alternative modes of settlement to commence after recording admissions and denials at the first hearing of the suit under Order X Rule 1 of the Code of Civil Procedure. 32. Reverting back to Salem Advocate Bar Association, Tamil Nadu v. Union of India (supra), the apex Court made it clear that the intention of the Legislature behind enacting Section 89 of the Code of Civil Procedure is that where it appears to the Court that there exists element of a settlement which may be acceptable to the parties, they, at the instance of the Court, shall be made to apply their mind so as to opt for one or the other of the four Alternative Dispute Resolution methods mentioned in the section and if the parties do not agree, the Court shall refer them to one or other of the said modes. The Supreme Court indicated the manner in which Section 89 of the Code of Civil Procedure and the provisions of the Arbitration and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987 can work together. Panels of well trained conciliators/mediators were directed to be prepared at all levels and the applicability of the Alternative Dispute Resolution Rules for disputes arising under the Family Courts Act, 1984 was also clarified. 33. Afcons Infrastructure Limited and another v. Cherian Varkey Construction Company Private Limited and others, 2010 (6) ADD 155 (SC) : (2010) 8 SCC 24 , is an exhaustive exposition of the scope, object and effect of Section 89 and Order X Rules 1-A, 1-B and 1-C of the Code of Civil Procedure, 1908. The apex Court referred to Salem Advocate Bar Association (II) v. Union of India (supra), in which sub-section (1) of Section 89 was interpreted as merely requiring formulating a summary of disputes. Mediation was stated to mean a dispute resolution process by negotiated settlement with the assistance of a neutral third party and judicial settlement is understood as referring to a compromise entered by the parties with the assistance of the Court adjudicating the matter, or another Judge to whom the Court had referred the dispute. The Supreme Court directed that:-- It has to be concluded that proper interpretation of Section 89 of the Code requires two changes from a plain literal reading of the section. Firstly, it is not necessary for the Court, before referring the parties to an ADR process to formulate or reformulate the terms of a possible settlement. It is sufficient if the Court merely describes the nature of dispute (in a sentence or two) and makes the reference. Secondly, the definitions of "judicial settlement" and "mediation" in Clauses (c) and (d) of Section 89(2) shall have to be interchanged to correct the draftsman's error. It is sufficient if the Court merely describes the nature of dispute (in a sentence or two) and makes the reference. Secondly, the definitions of "judicial settlement" and "mediation" in Clauses (c) and (d) of Section 89(2) shall have to be interchanged to correct the draftsman's error. Clauses (c) and (d) of Section 89(2) of the Code will reads as under when the two terms are interchanged: (c) for "mediation", the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authorities Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for "judicial settlement", the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. The above changes made by interpretative process shall remain in force till the Legislature corrects the mistakes, so that Section 89 is not rendered meaningless and infructuous. 34. The apex Court also considered that among suits and cases of civil nature normally suitable for ADR processes come all cases arising from strained or soured relationships, including disputes relating to matrimonial causes, maintenance, custody of children and disputes relating to partition/ division among family members/coparceners/ co-owners. 35. The apex Court explained that Section 89 refers to five types of ADR procedures, made up of one adjudicatory process (arbitration) and four negotiatory (non-adjudicatory) processes--conciliation, mediation, judicial settlement and Lok Adalat settlement. It was also made clear that the provisions in the Arbitration and Conciliation Act, 1996 or the Legal Services Authorities Act, 1987 were not modified or superseded by Section 89 or Order X Rule 1-A. The scheme of Section 89 and Rules 1-A to 1-C was stated to be that the Court explains choice available regarding ADR process to the parties, permits them to opt for process by consensus and if there is no consensus, proceeds to choose the process. The Supreme Court also pointed out that where there is no pre-existing arbitration agreement between the parties, the consent of all the parties to the suit will be necessary for referring the subject-matter of the suit to arbitration under Section 89 of the Code of Civil Procedure. The Supreme Court also pointed out that where there is no pre-existing arbitration agreement between the parties, the consent of all the parties to the suit will be necessary for referring the subject-matter of the suit to arbitration under Section 89 of the Code of Civil Procedure. The Supreme Court observed that if the parties are not agreeable for either arbitration or conciliation, both of which require consent of all parties, the Court has to consider which of the other three Alternative Dispute Resolution processes (Lok Adalat, mediation and judicial settlement) which do not require the consent or parties for reference, is suitable and appropriate and refer the parties to such process. The Supreme Court explained the manner in which such settlement will be effective and appropriate stage for considering the reference in civil suits is stated to be after completion of the pleadings. However, in case of family disputes or matrimonial cases, the apex Court observed that the relationships become hostile on account of various allegations in the petition against the spouse. The hostility will be further aggravated by the counter-allegations made by the respondent in his or her written statement or objections. The Supreme Court, hence, advised that as far as Family Courts are concerned, the ideal stage for mediation will be immediately after service of respondent and before the respondent files objections/written statements. 36. The Supreme Court summarized the procedure to be adopted by a Court under Section 89 of the Code of Civil Procedure as under: (a) When the pleadings are complete, before framing issues, the Court shall fix a preliminary hearing for appearance of parties. The Court should acquaint itself with the facts of the case and the nature of the dispute between the parties. (b) The Court should first consider whether the case falls under any of the category of the cases which are required to be tried by Courts and not fit to be referred to any ADR processes. If it finds that the case falls under any excluded category, it should record a brief order referring to the nature of the case and why it is not fit for reference to ADR processes. It will then proceed with the framing if issues and trial. If it finds that the case falls under any excluded category, it should record a brief order referring to the nature of the case and why it is not fit for reference to ADR processes. It will then proceed with the framing if issues and trial. (c) In other cases (that is, in cases which can be referred to ADR processes) the Court should explain the choice of five ADR processes to the parties to enable them to exercise their option. (d) The Court should first ascertain whether the parties are willing for arbitration. The Court should inform the parties that arbitration is an adjudicatory process by a chosen private forum and reference to arbitration will permanently take the suit outside the ambit of the Court. The parties should also be informed that the cost of arbitration will have to be borne by them. Only if both parties agree for arbitration, and also agree upon the arbitrator, the matter should be referred to arbitration. (e) If the parties are not agreeable for arbitration, the Court should ascertain whether the parties are agreeable for reference to conciliation which will be governed by the provisions of the AC Act. If all the parties agree for reference to conciliation and agree upon the conciliator(s), the Court can refer the matter to conciliation in accordance with Section 64 of the AC Act. (f) If the parties are not agreeable for arbitration and conciliation, which is likely to happen in most of the cases for want of consensus, the Court should, keeping in view the preferences/ options of parties, refer the matter to anyone of the other three ADR processes:(a) Lok Adalat; (b) mediation by a neutral third-party facilitator or mediator; and (c) a judicial settlement, where a judge assists the parties to arrive at a settlement. (g) If the cases is simple which may be completed in a single sitting, or cases relating to a matter where the legal principles are clearly settled and there is no personal animosity between the parties (as in the case of motor accident claims), the Court may refer the matter to Lok Adalat. In case where the questions are complicated or cases which may require several rounds of negotiations, the Court may refer the matter to mediation. In case where the questions are complicated or cases which may require several rounds of negotiations, the Court may refer the matter to mediation. Where the facility of mediation is not available or where the parties opt for the guidance of a Judge to arrive at a settlement, the Court may refer the matter to another Judge for attempting settlement. (h) If the reference to the ADR process fails, on receipt of the report of the ADR forum, the Court shall proceed with hearing of the suit. If there is a settlement, the Court shall examine the settlement and make a decree in terms of it, keeping the principles of Order 23 Rule 3 of the Code in mind. (i) If the settlement includes disputes which are not the subject-matter of the suit, the Court may direct that the same will be governed by Section 74 of the AC Act (if it is a conciliation settlement) or Section 21 of the Legal Services Authorities Act, 1987 (if it is a settlement by a Lok Adalat or by mediation which is a deemed Lok Adalat). If the settlement is through mediation and it relates not only to disputes which are the subject-matter of the suit, but also other disputes involving persons other than the parties to the suit, the Court may adopt the principle underlying Order 23 Rule 3 of the Code. This will be necessary as many settlement agreements deal with not only the disputes which are the subject-matter of the suit or proceeding in which the reference is made, but also other disputes which are not the subject-matter of the suit. j) If any term of the settlement is ex facie illegal or unenforceable, the Court should draw the attention of parties thereto to avoid further litigations and disputes about executability. The Court should also bear in mind the following consequential aspects, while giving effect to Section 89 of the Code: (i) If the reference is to arbitration or conciliation, the Court has to record that the reference is by mutual consent. Nothing further need be stated in the order-sheet. (ii) If the reference is to any other ADR process, the Court should briefly record that having regard to the nature of dispute, the case deserves to be referred to Lok Adalat, or mediation or judicial settlement, as the case may be. Nothing further need be stated in the order-sheet. (ii) If the reference is to any other ADR process, the Court should briefly record that having regard to the nature of dispute, the case deserves to be referred to Lok Adalat, or mediation or judicial settlement, as the case may be. There is no need for an elaborate order for making the reference. (iii) The requirement in Section 89(1) that the Court should formulate or reformulate the terms of settlement would only mean that the Court has to briefly refer to the nature of dispute and decide upon the appropriate ADR process. (iv) If the Judge in charge of the case assists the parties and if settlement negotiations fails, he should not deal with the adjudication of the matter, to avoid apprehensions of bias and prejudice. It is therefore advisable to refer cases proposed for judicial settlement to another Judge. (v) If the Court refers the matter to an ADR process (other than arbitration), it should keep track of the matter by fixing a hearing date for the ADR report. The period allotted for the ADR process can normally vary from a week to two months (which may be extended in exceptional cases, depending upon the availability of the alternative forum, the nature of case, etc.). Under no circumstances the Court should allow the ADR process to become a tool in the hands of an unscrupulous litigant intent upon dragging on the proceedings. (vi) Normally the Court should not send the original record of the case when referring the matter to an ADR forum. It should make available only copies of relevant papers to the ADR forum. (For this purpose, when pleadings are filed the Court may insist upon filing of an extra copy). However if the case is referred to a Court annexed mediation centre which is under the exclusive control and supervision of a judicial officer, the original file may be made available wherever necessary.The procedure and consequential aspects referred to in the earlier two paragraphs are intended to be general guidelines subject to such changes as the Court concerned may deem fit with reference to the special circumstances of a case. We have referred to the procedure and process rather elaborately as we find that Section 89 has been a non-starter with many Courts. We have referred to the procedure and process rather elaborately as we find that Section 89 has been a non-starter with many Courts. Though the process under Section 89 appears to be lengthy and complicated, in practice the process is simple: know the dispute: exclude "unfit" cases; ascertain consent for arbitration or conciliation; if there is no consent, select Lok Adalat for simple cases and mediation for all other cases, reserving reference to a Judge-assisted settlement only in exceptional or special cases. 37. In spite of the above referred to statute and case law on the aspect, the provisions and principles appear to be mostly observed either in breach or in rendering only lip service, but not in any dedicated and committed effort for the ultimate achievement of securing the operation of the legal system to promote justice and a social order for the promotion of welfare of the people as enshrined in the directive principles of State policy of the Constitution of India (Articles 38 and 39A). The intent and purpose of the relevant statutory provisions are defeated both in letter and spirit more often than not and hence, it will be but appropriate to formulate necessary guidelines for strict and faithful observance by all the Courts in the State. 38. Therefore, in tune with the statutory provisions and precedential principles, all the Courts in the State shall act in due compliance of the following guidelines: 1. In all suits or proceedings relating to matters concerning the family within the meaning of Order XXXII-A of the Code of Civil Procedure and suits and proceedings within the jurisdiction of Family Courts in accordance with Section 7 of the Family Courts Act, 1984, including all petitions and proceedings under the Hindu Marriage Act, 1955, it shall be the duty of the Court to make an endeavour in the first instance to assist the parties in arriving at a settlement in respect of the subject-matter of the suit or petition or proceeding immediately after appearance of the defendant(s)/respondent(s) before the Court on the day fixed in the summons or notices to appear and answer and before the defendant(s)/ respondent(s) files (file) written statement(s)/counter(s)/ objection(s). 2. 2. In the event of such an endeavour not succeeding, the Court shall, when the pleadings are complete and before framing issues/points for consideration, fix a preliminary hearing for appearance of parties and proceed further to act in accordance with the directions of the Supreme Court in Afcons Infrastructure Limited and another v. Cherian Varkey Construction Company Private Limited and others (supra), under Section 89 and Order X Rule 1A of the Code of Civil Procedure. 3. In trying to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding consistent with the nature and circumstances of the case, the Court may take the assistance of counsellors, experts, institutions, organizations or persons engaged in promoting the welfare of the family or social welfare. 4. The Court may adjourn the suit or petition or proceeding from time to time as it deems fit if it appears to the Court that there is a reasonable possibility of a settlement between the parties. 5. In promoting such settlement, the Court may adopt its own procedure not inconsistent with any specific provision or principle of law and in tune with the principles of justice, equity and good conscience, natural justice and fundamental judicial procedure. 6. The possibility of further negotiation and settlement should be kept alive since the first instance till the advent of grant of any relief on contest on merits in accordance with law. 7. Maximum possible use of the services of the Legal Services Authorities, the Legal Services Committees and the Lok Adalats constituted by them in the State shall be made by the Courts in this regard. 8. Compliance with the above guidelines be reflected in the record of the suit or petition or proceeding. 9. These guidelines apply not to the Courts of first instance but also Courts of appeal and revision. 39. To give effect to the above guidelines, it is further desired that,-- (a) The State Government, the High Court and the State Legal Services Authority may take all necessary steps to make available sufficient and adequate number of trained counsellors, arbitrators, mediators, conciliators and experts to assists the Courts in discharging their functions and duties in this regard. 39. To give effect to the above guidelines, it is further desired that,-- (a) The State Government, the High Court and the State Legal Services Authority may take all necessary steps to make available sufficient and adequate number of trained counsellors, arbitrators, mediators, conciliators and experts to assists the Courts in discharging their functions and duties in this regard. (b) The Registry of the High Court of Andhra Pradesh may evolve a suitable format for obtaining information from the Courts concerned at the end of each period about the discharge of the solemn duty of the Court in this regard and monitor due compliance. (c) The Registry of the High Court of Andhra Pradesh may place the suggestions for incorporation of/ amendment to, the rules made by the learned Amicus Curiae before the Hon'ble the Chief Justice of the High Court of Andhra Pradesh for appropriate directions. 40. We place on record our deep sense of appreciation for the enlightened assistance from Sri J. V. Suryanarayana, learned Senior Counsel, Sri G. Vidya Sagar, Smt. M. Bhaskara Lakshmi and Sri T. Lakshminarayana, learned Counsel. 41. The Registry of the High Court of Andhra Pradesh is directed to circulate copies of the judgment to all the Courts in the State and also take necessary action for compliance of the directions. 42. Copies of the judgment be communicated to the Secretary, Legislative Affairs and Justice, Law Department, Government of Andhra Pradesh and the Member Secretary of the Andhra Pradesh State Legal Services Authority also for necessary action.