THEME- REFORMS NEEDED IN CIVIL PROCEDURE CODE IN INDIA

TOPIC- COURT MANDATED MEDIATION IN MATRIMONIAL AFFAIRS

INTRODUCTION

In a country like India, marriage is considered social contract between individuals and the same
is supposed to be stable and enduring. The institution in regards to family is necessary for 6
social functions i.e. sexual behavior regulations, procreation, production, consumption, passing
on the status of lineage and race, and socializing. Kinship is the most important pillar on which
family and marriage stands.1 Apart from being a social event, marriage is also a commitment in
legal regards.2 Tolerance, respect comma and adjustment it are the very foundations of marriage.3

Human existence is inclusive of everlasting conflicts between individuals. These differences can
arise out of opinions, situations, personality, etc. Differences which remain unresolved give birth
to disputes.4 Disputes that arise out of a marriage are known as matrimonial disputes. Disputes of
such kind lead to dissolution, separation and all other sorts of conflict. As soon as we are
descending into future, mankind is witnessing several changes and challenges. Some of the
pertinent challenges are instability changing roles and tensions between couples. Divorce is
visible at a rampant rate.5 As marriages limp, the need of the hour is intensive treatment and due
care. Adversarial jurisprudence that forms an essence of this legal system cannot be considered a
viable option in matrimonial issues as they are too sensitive. The reason behind this is that too
much mudslinging is visible on both the sides. Special approach is necessary in order to litigate
in respect of family disputes.

Poor communication lies in the roots of every relationship problem. Mediation is considered a
valuable process here. It is a process in which a mediator who is the neutral party promotes
communication in order to insure reconciliation, settlement and understanding. It is considered

1
HEMENDRANATH REDDY & MANOHAR GOGIA, MARRIAGE & DIVORCE LAW, ( 1st ed, ALT publications ) p.8.
2
V. Hemalatha Devi, Rural Women-Legal Awareness, SC Journal sep ed., (1990).
3
Govt. of India, 18th Law Commission 217 Report, pg.9 Para 1.2.
4
Supreme Court, Mediation Training Manual, SC OFFICIAL WEBSITE (22 October, 2020),
http://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20O F%20INDIA.pdf accessed on
9/5/2016.
5
VIJENDRA KUMAR, EXPENDING HORIZONS OF DIVORCE UNDER THE HINDU MARRIAGE ACT, 1955, 21-29 (5th ed., A
L T Publications, ) (2013).
valuable because there is an expectation of a continuing marriage if the relationship involves the
life of minor children which would be at stake if the marriage breaks. Mediation comes forward
as process which helps individuals in avoiding hefty financial and emotional costs as the
settlement process is is quick and cost-efficient. Confidentiality, avoidance of trial risks and
stress decrease is also visible in a mediation process. Furthermore, mediation also helps in
protecting a child from the misery of parental conflict. Since the parties in the case of mediation
draw their own terms, they possess a greater sense of satisfaction as compared to a trial. Lastly,
valuable skills in order to reduce future conflicts are also learnt by processes such as mediation.6

The parties to a mediation proceeding can either part ways or mutually agree to stay together.
The complaint has to be quashed in either of the two choices. In the event, the parties can choose
to move to High Court in order to get the complaint quashed. The complaint will proceed in the
same manner if no settlement is reached. If a particular settlement is reached, two parties shall
get remedied from tribulations and trials of several criminal cases. Moreover, the burden on the
courts also lessens and the same takes into account, the public at large. The complaint further
shall be quashed by the high court after reaching a conclusion in regards to an equitable and
genuine settlement. It is considered by courts that mediation is a fruitful process and therefore
the courts are of the opinion that parties should opt for alternative means of dispute resolution in
order to settle their matrimonial disputes.

A matrimonial dispute often arises out of trivial issues and the same can be sorted. As the courts
have started to refer matrimonial disputes to mediation, the entire regime has got a legal
recognition now.7 Therefore at a very early stage of a case when a Family Court or any other
Court takes up a matrimonial dispute, the same is often referred to mediation centers. In the Law
Commission report8 it had been stated that the courts are supposed to bring up a radical change in
the ordinary civil proceedings by referring a case to alternative means of dispute resolution. Did
behind the same is to endeavor towards settlement before the trial commences. Quick justice and
speedy disposal of cases are a constitutional mandate and the same is to be done in matrimonial

6
Find Law, Divorce Mediation- Overview, FINDLAW (23RD October, 2020),
http://family.findlaw.com/divorce/divorce-mediationoverview.html#sthash.KzIKVRbt.dpuf accessed on 17/11/2016.
7
Dr. Marisport A, Resolving Pending Cases through ADR under s. 89 of CPC: A Study, GNLU (October 24, 2020),
https://doj.gov.in/sites/default/files/GNLU.pdf.
8
Govt. Of India, Law Commission 45th and 59th Reports, GOVRNMENT OF INDIA (25TH October, 2020) www.gov.in.
cases.9 Several 'Help desks' are being set up at several places inclusive of facilitation centers at
Court complexes.

LAWS PERTAINING TO MEDIATION

Several laws associated with matrimonial conflicts are the Hindu Marriage Act, 1954, Family
Courts Act, 1984, CPC,1908, Legal Service Authority Act, 1987 etc. The aforementioned Acts
have helped in institutionalization of alternative means of dispute resolution in matters pertaining
to marriage.

Section 89 of the CPC, 1908, post the amendment of 1999, has prescribed 4 alternative methods
of court mandated ADR, mediation being a prominent one as well. The section puts an obligation
on the Courts that after there has been framing of the issues, written statement, statement of the
parties under Order 10 Rule 1, the courts are supposed to give due consideration to the fact if
there is any settlement possible.

The role of family courts come down as a valuable institution in giving services to families in
trouble pertaining to matrimonial disputes involving instability. In order to minimize the fault
oriented approach and traditional ways of litigation, the family courts follow a procedure that is
away from formality and technicalities. The aim is to avoid frivolous litigation and vouch for
pre-trial amicable settlement.

Family Courts Act, 1984 lays down the objective of establishment of family courts in order to
promote conciliation. The same also ensure that the matters are done away with in a speedy
manner in disputes arising out of marriage and family. Though the Act vouched for speedy
conciliation, the same is not visible in metropolitan cities with high economics stakes.
Metropolitan cities are not able to see speedy recovery and settlement due to deeply rooted
complexities.10

Matrimonial disputes always leave behind matters pertaining to maintenance, child custody, etc.
Section 9 of the aforementioned act makes it imperative upon the courts to settle matrimonial
disputes and take assistance of counselors in the same. When the counselors fail in their duty, the

9
Sushil Kumar Sharma v. Union of India, AIR 2005 SC 3100 at 18.
10
FLAVIA AGNES, FAMILY LAW , MARRIAGE, DIVORCE, AND MATRIMONIAL LITIGATION, (1st ed., Vol. 2, Oxford
Publication) p. 319.
matter is directed to mediation centers where the mediator tries to strike a negotiation and
settlement.

Whether the law is directory or obligatory in nature is dependent upon the intent behind the
legislature and not the language that it is quoted in. The facts that are considered in a legislation
are its nature, designing and consequences which it may lead to when interpreted in several
manners.

When parties are not sent for mediation under the aforementioned Act, it wouldn't leave to the
violation of the basic facets of the Act. Therefore the Act cannot be considered either to be
obligatory or directory in nature. The Act only casts a duty upon the courts to endeavor towards
settlement.

In S. Thanikikodi v. Ramuthayee11, the Court while taking up matrimonial dispute states that as
per s. 23(2) and (3) of HMA,1955, a responsibility rests on every court to bring about
reconciliation between parties in matrimonial case. Moreover it was observed that only if the
courts are of the opinion that there is some chance of settlement, it will endeavor towards the
same and not in any other matter. The duty casted upon courts under section 23 of HMA,1955 is
to be taken into consideration after analyzing the facts and situations arising in each case. The
main objective of the aforementioned Act is to bring peace and resolve disputes of maintenance
in matrimonial ties. The emphasis behind the Act is that reconciliation steps are to be taken by
the courts 'in first instance'. This does not signify that the first step is to be taken at the very
beginning and not at a later stage in regards to reconciliation. Whenever the courts warrant doing
so, they can do the same.

In Salem Advocate Bar Association, T.N v. Union of India 12, it had been laid down that Court
matters make it mandatory to resolve disputes by mediation, conciliation and arbitration. The
transitional phase in Indian mediation regime will be through the turning point. Progressive
mediation has to be molded in a manner that it leads to gain and recognition for litigants.

THE STANDPOINT OF THE COURTS VIS-A-VIS MEDIATION IN MATRIMONIAL MATTERS

11
AIR, 1986 Madras 263.
12
(2003) 1 SCC 49.
Having discussed the concepts and the basic provision relating to alternate dispute resolution
given in the varied legislations, it is imperative for us to discuss the view of the Honorable
Supreme Court and various High Courts with respect to mediation in matrimonial matters. It is
seen in recent times that there is a preponderance matrimonial disputes. Marriage is regarded as a
social institution and it is a sacred one. The main object of a marriage is to bestow an opportunity
to a young couple to settle and lead a peaceful life. But sometimes it so happens that a little spat
between a husband and a wife takes a horrid face and transmutes itself into a prolonged court
case. More often than not it happens that a criminal complaint is lodged which ropes in the whole
family and becomes a breeding ground for acrimony and hatefulness. It is to be mentioned that
such small disputes must be nipped in the bud.

Its abundantly transparent that mediation is a viable option in conflict of marriage. We hear that
justice delayed is justice denied. Speedy justice is the need of the hour. Mediation is now
considered as one of the best and acknowledged form for ADR in so far the matrimonial disputes
are concerned.

CRITIQUES OF MEDIATION IN MATRIMONIAL OFFENCE-

The researcher has maintained a distinction between matrimonial disputes in general and
disputes having a tinge of criminality i.e. Cruelty under section 498A, offences under Domestic
Violence Act, 2005 and offences under Dowry Prohibition Act, 1961. Purveyors of mediation
express that mediation provides a congenial environment for a dispute resolution which pre-
empts development of acrimoniousness between the family members. It also helps the children in
the family by not letting them go through a traumatic process of a prolonged trial. The people
who criticize mediation express their disapproval on the fact that by this process criminal are left
scott-free and hence they are not punished for their misdeeds.

There are several advantages of mediation especially in matrimonial dispute. It ensures- 1)

Confidentiality; 2) Rules of evidence law does not apply hence renders it to be a informal
process; 3) Absolute freedom to reject the outcome; 4) Equal bargaining power; 5) Cost
effectiveness.

The most attractive aspect of this process is that it is cheap and it follows the principle of timely
justice. I have discussed at a greater length the laws in India dealing with alternative dispute
resolution. S. 30 of the Arbitration and Conciliation Act (AC Act), 1996 mandates that a tribunal
of arbitration can use the means of settlement in mediation for the purpose of resolving conflicts
and Section 89 of the CPC, 1908 talks about that if after framing of issues under O.14 the judge
opines that there is an existing scope of settlement then the judge can refer such party to
mediation. However it is abundantly clear that section 89 of the CPC deals with civil matter. The
question which looms large is what is the scope of settlement in cases involving cruelty and
dowry demand or a tinge of criminality? The bottom line is whether such settlement is feasible or
not or whether it tantamount to leaving the criminal and tying such victim to the perpetrator?

For our purpose we are only considering cruelty. Cruelty is defined under Section 498A 13 of the
IPC, 1860. Schedule 1 of the Criminal Procedure Code, 1973 (in short Cr.PC) renders offence
under section 498A IPC to be non-cognisable and non-compoundable. Section 320 of Cr.PC
states the composition of offences. Sub-section 9 of section 32014 state that any offence will not
be compoundable apart from the intricacies of s. 320.

Therefore it is clear that an offence of cruelty cannot be compounded under section 320 of
Cr.PC. Offences of this kind are a serious one and they are of such nature that even courts cannot
carry out a compromise. However in India courts have every now and then have preferred to
refer such matrimonial dispute to mediation regardless of the nature of the offence.

A BRIEF CONSPECTUS OF THE JUDGMENTS

Recently Supreme Court in Ram Gopal v State of Madhya Pradesh15 opined that the offence
under s. 498-A is non-compoundable in appropriate cases if the parties are ready to come to
terms then a mediation can be ordered and if it bears fruit then the FIR registered is deemed fit
for quashing under s. 482 of Cr.PC. This was not done with a view to dilute the effectiveness of
section 498-A, but was done with a view to find cases where there is chance of reconciliation.
Justice Katju M. writing for the bench cautioned that judges must be chary in giving orders for
mediation as chances are there that the order might get misused and accused might remain out of
the clutches of law. He opined that- Several non compoundable offences are there in the IPC
13
Section 498A of the IPC, 1860.
14
Section 320- Compounding of offences.
15
2010 SCALE 711.
inclusive of offences under Section 498 A and 326. A suitable amendment can be inserted in the
statute for making these offences compoundable. A suitable proposal can be considered by the
Law Commission of India for its examination under the Union in this regard. The court shall not
be relieved of their burden of deciding cases by any such steps in regards to cases where the
aggrieved parties have themselves coming to a settlement, but also encouraging a process of
reconciliation.

Also in another judgment Honorable Supreme Court saddled a great and an enormous
responsibility on the advocates who are the officer of the courts. It is their responsibility to not
let minor complaint turn into an exaggerated form. It is their responsibility to protect a family
and they should advice a complainant to reconcile the matter with their family members if it is
not grievous and serious. They must make serious endeavor to arrive at an amicable solution 16. It
is an unfortunate scenario where a complainant is not able to visualize the ramification of a
complaint on the family relations. It is writ large that such complaint is going to put the
complainant and accused to an unbearable agony and harassment. Justice is always considered to
be a quest for truth. However in these kinds of cases truth is seldom found. Courts must really be
cautious in dealing with these cases and must take cognizance of the harsh reality of life. Punjab
and Haryana HC in Satish Sahni & Others v. State of Punjab & Another17 opined that- “It is
evident that in the Mediation and Conciliation Center, the parties have come to an amicable
solution, as per terms & conditions of Compromise/Agreement in the manner stated hereinabove.
Since the welfare and interest of the parties is protected by an amicable settlement so, there is no
impediment in translation of their wishes into real aspects and the quashing the criminal
prosecution to set the matter at rest to enable them to live in a peaceful manner and to enjoy the
life and liberty with dignity.

Experience shows that prolonged and protracted trials bring hatred, acrimony and resentment
among the family members. It is also a matter of popular understanding that there are situation
wherein if the male spouse or his family member had to stay in prison for a while then chances
are there that the familial ties might get ruptured beyond repair and it will decimate all the
opportunities of amicable resolution altogether. This suffering is profoundly painful and
prolonged. In India, there is an urgent need of mediation in marriage disputes.
16
Preethi Gupta v. State of Jharkhand, AIR 2010 SC 3363.
17
Criminal Misc.No.M-6526 of 2011(O&M), Date of Decision:31.05.2012.
Herein the observation of Chief Justice of India Justice Sabharwal in the case of B.S Joshi v.
State of Haryana and ors18 becomes relevant. He opined that matrimonial disputes have
increased at a rampant rate. Marriage is a ceremony that is considered sacred and the main
purpose behind the same is to make individuals settle down in a peaceful manner and live their
respective lives amicably. Trivial skirmishes lead to sudden eruption of disputes and the same
lead to commission of heinous crimes. These crimes are inclusive of elders of a family, and the
ones who were supposed to bring settlement in a conflict are seen to bring rapprochement and
are left helpless after being considered as an accused of a crime. Several other reasons are also
visible to not encourage matrimonial litigation as it becomes a medium of termination of disputes
and amicable settlement by consensus ad idem and not by furious court proceedings where the
process becomes time taking where parties tend to lose the days that were to be nurtured in
chasing a case in a court of law.

In Mohd. Mushtaq Ahmad v. State19, in this case the wife of the accused enforced a petition of
divorce and lodged an FIR in the name of the male spouse under s. 498-A IPC, 1860. The HC of
Karnataka ordered the individuals involved to opt for mediation as per s. 89 CPC. The matter
was settled affably through mediation after which a petition was filed under section 482 and
requested the high court to quash the FIR by the exercise of inherent power. The same was
ordered.

In Gurudath K. v. State of Karnataka20, the circumstances are similar to the aforementioned case.
Justice Gowda opined that, “The non compoundable offences in matrimonial disputes post the
amicable settlement by parties, if the courts are satisfied, s. 320 of Cr. PC shall not hold any bar
in exercising of powers in order to quash an FIR or criminal complaint in regards to such
offences.” Therefore, the court exercised its inherent power and quashed the F.I.R after deriving
the result that the female spouse is not placed under any pernicious circumstance.

18
2003 4 SCC 675; Himanshu v. State of Delhi N.C.T Crl. M.C. No. 2225/2012 Date of Decision: 31st July, 2012;
G.V. Rao Vs. L.H.V. Prasad, (2000) 3 SCC 693; Gian Singh Vs. State of Punjab, (2010) 15 SCC 118; (2012) 10
SCC 303; Jitendra Raghuvanshi Vs. Babita Raghuvanshi, (2013) 4 SCC 58; K. Srinivas Rao v. D.A. Deepa, (2013)
5 SCC 226, 241-242 : AIR 2013 SC 2176.
19
(2015) 3 AIR Kant R 363; Orissa High Court in Anita Agrawala v. Santhosh Kumar Mohanty 1997(1) OLR
487 & Karnataka High Court H.S. Uma v. G.K. Samanth Arya 1993(2) Kar LJ 529; Raghunath Prasad v. Urmila
Devi & Another, AIR 1973 All 203.
20
Criminal Petition No. 7258 of 2014, order dated 20-11-2014.
Thus it is amply clear from the afore-mentioned description that in contemporary times the
intention of the court is to settle disputes as amicably as possible. It is done solely with the
purpose to save family relationship.

This move is criticised time and again as accused have showed less apprehension in regards to
conviction in the cases involving disputes that are internal. The lobby which criticises mediation
are of the view that the process of mediation is a sheer failure as it let the accused roam freely
and go unpunished. The lobby is also critical of the judgement of the Supreme Court which
mandates that a non-compoundable offence can be compromised and consequently due to that a
threat looms large to the society at large. NCRB reports shows that the cases of domestic
violence are increasing leaps and bounds. There is a spike of around 134% within a duration of
ten years. The critics of mediation believe that such offences must be dealt with iron hands. They
should be sentenced so that they can reform. However it is clear that courts have accepted the
fact that the offence of cruelty is non-compoundable and in appropriate cases it will be dealt with
an iron hand.

Supreme Court in the case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P)
Ltd21 held that even if a case is sent in for mediation a court of law does not let go off its
authority in the case. We don’t have any guidelines as to when a case can be referred to
mediation. I am of the view that cases shouldn’t be given distinction on the basis of
compoundable and non-compoundable. Each case should be viewed distinctly and the judge
should see whether mediation will be a feasible option for the case or not. Each case is of a
different magnitude, hence it should be measured differently.

CONCLUSION

It is concluded that marriage is in the roots of any society. A society’s building block is formed
by marriage. Indian families and institutions are formed by complexities of instability of
feelings and sentiments. The complexities further lead to matters of dissolution and disruption.
Divorces in India have become rather alarming and geometrical and therefore calling for aid and
attention in marriages. In the present legal system adversarial jurisprudence is not efficient in
terms of time and money therefore alternative means are to be opted.

21
(2010) 8 SCC 24.
A non coercive and consensual process such as court mandated mediation comes down as an
effective remedy in this regard. Not only is this process helpful in saving time and money but
also helps in diminishing the acrimony which results from litigation. Mediation has become an
effective form of ADR and has gained quite some popularity in India in matters pertaining to
matrimonial conflicts. Mediation helps the parties in looking into necessary aspects and with the
backing of several laws, the judges play the paramount role in settlement of matrimonial
conficts.

Now it is settled that the courts are of the view that an endeavor should be made to promote
reconciliation through mediation and secure speedy justice in dispute relating to marriage and
family matters. As recently opined by the Supreme Court that India is a melting pot of many
cultures and diversity hence differences are bound to happen. So we observe a plethora of
matrimonial disputes. In the 59th Law Commission of India report it was emphasized that
disputes concerning family must not be dealt with usual procedure used in civil disputes. It
should be dealt with a much more mediation oriented approach. It should be aimed at arriving at
a settlement. It must be borne in mind that speedy justice is a fundamental right as enunciated in
the case of Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar22. It is abundantly
clear that courts are burdened with a humongous amount of cases, hence this affects the process
of dispensation of justice.

Resultantly if a divorce petition is filed along with an F.I.R alleging cruelty or if simply an F.I.R
is filed alleging cruelty then if the circumstances of the dispute permits then the matter should be
referred to mediation. Consequently if they come at terms and settle the dispute then they may
approach the Honorable high court under Art. 226 r/w Section 482 Cr.PC for quashing the
F.I.R23. Hence it can be concluded that present system is suffice to tackle the vices if any in the
present legal system. Section 89 of the C.P.C is a boon for the society at large. It is relevant that
the member of the bar has a pivotal role to play. They should not present the exaggerated version
of the incidents in the complaint. If there is any scope of settlement then it should be resorted to.

22
1979 AIR 1369, 1979 SCR (3) 532.
23
SC Mitra v Raja Kali Charan, (1928) ILR 3 Luck 287 : AIR 1928 Oudh 104 ; Bikaru, (1947) 22 Luck 391: 1960
Cr LJ 455 ; KC Sonreka v State of Uttar Pradesh, AIR 1963 All 33 : 1963 Cr LJ 38 .