Family cases and the Role of Judges as Mediators:
A family is a basic unit of society. The foundation of our society is based on traditionally strong family system. Around the globe, 21st century witnessed the great awareness campaigns for feminist rights. The awareness campaigns also showed their result in Pakistan where due to protracted trials need for special family court was already being felt. This led to the passing of series of laws dealing with Family matters as well as creation of Family Courts. Where on the one hand, establishment of Family Courts have helped in ameliorating the sufferings and agonies of women folk, it has also resulted in unprecedented rise of Family cases. The alarming increase in divorce and family disputes throughout the Pakistan is a matter of concern. A broken family has overarching effects not only on the unfortunate family itself but also on the whole society. Therefore, in family cases, Family Court Judge has a responsibility to act as a reconciliatory to protect the family, as delicate, but intricate questions of children are involved.
A Family Court Judge has a statutory responsibility to try to effect reconciliation between the parties. Arbitrating between husband and wife when there is discord between them is based on Quranic injunction, “And when you fear discord between them, send them one arbitrator from his family and one from hers, if they desire reconciliation God will make matters well between them”. It is the bounded duty of Judge to make genuine attempt for reconciliation between spouses. A judge cannot shirk his responsibilities by mechanically arriving at a conclusion that since the plaintiff has knocked the doors of court; all avenues of reconciliation have closed. A sincere effort to effect reconciliation may result in fulfilling God’s command by saving a family unit as well as precious court time.
If we scrutinise the Family Laws, we shall find that Legislature made special provisions to effect reconciliation. The constitution of Arbitration Council under Muslim Family Law Ordinance reflects the anxiety of Legislature to protect the family unit. However, unfortunately Arbitration Council has failed to achieve its desired objectives due to various reasons. This has put an additional responsibility on the shoulders of Judge Family Court to try to effect reconciliation between the parties. Judges now have to act as arbitrator to cause compromise between the parties. The court must hold reconciliation proceedings on the assumption that marriage between the parties can be saved, or other matters can be resolved.
However, the task of Family Judge to act as reconciliatory is not easy. Once a person drags her life-partner to the court, the relationships tend to get sour. Asking couples who have already started the divorce process to consider reconciliation might seem even less promising. Only a few such couples are potentially open to reconciliation. A research conducted in USA concluded that only 10% of couples are interested in reconciliation after initiating the process of divorce as the parties might themselves have gone through the process of reconciliation after involving family elders. Given the high number of divorce cases filed every day in district courts of Pakistan, it is still quite an achievement if judge is able to resolve 20% disputes at such belated stage.
A Judge Family Court should be mindful of the fact that problems between the spouses can be of complex nature, involving wide range of issues. It is difficult to effect reconciliation in such a short span of time. However, there are not rare occurrences where parties themselves want to live together but due to family pressures or dispute between the spouses’ families, matter has gone to such an extent. A judge Family Court should be mindful of such circumstances, as these are not only easy to resolve but also it would be a great injustice to parties as well as to their children if the separation is effected due to some extraneous problems.
Though it is desirable to put maximum effort to effect reconciliation and in appropriate cases adjournment may also be granted to give reasonable time to parties to reach settlement, however, no attempt should be made to force reconciliation. It is a right of party whether he opts to choose settlement or not and judge cannot direct it. The judge merely acts as a facilitator; he cannot direct a party to enter into negotiations for compromise. The parties must be assured that if they do not feel inclined to enter into reconciliation process, no negative inference would be drawn against them. In many cases, women approach the court after facing long series of acts of cruelty and hardship, their journey should not be made more tedious on the pretext of reconciliation.
From the above discussion it can be summed up that Judge Family Court role as reconciliator is complex and challenging. However, judges possess the potential to facilitate the process of reconciliation between the parties. It cannot be emphasised enough that every effort should be made to effect reconciliation between the parties so that basic social institution of our society can be saved and parties as well as children be saved from lifelong trauma and agony.