NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL, (M.P.)

project

Family Law- 1
TOPIC: “Matrimonial Disputes: The Need and Requirement
of Reconciliation”

Submitted By: - Submitted To:-

Mayank Joshi Debashree Sarkar
B.A.LLB 2019 130 Assistant Professor
Section: - B
Semester: - 3rd
 ACKNOWLEDGEMENTS

The practical realization of this project has become a reality due to the assistance of many
persons. I am full of gratitude for Prof. Debashree Sarkar Her consistent supervision, and
invaluable guidance have been of immense help in understanding and successful completion of
project report.

I would like to thank my family and friends, without their support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Gyan Mandir and through Internet. I would be grateful to
receive comments and suggestions to further improve this project report.

I feel highly elated to work on the topic “Matrimonial Disputes: The Need and Requirement of
Reconciliation”

Mayank Joshi

2019 B.A.LL.B 130

Section B
 TABLE OF CONTENTS

ACKNOWLEDGEMENTS.............................................................................................................2

INTRODUCTION-..........................................................................................................................4

STATEMENT OF PROBLEM........................................................................................................5

LITERATURE REVIEW-...............................................................................................................5

LIST OF CASES.........................................................................................................................6

HYPOTHESIS-................................................................................................................................6

RESEARCH QUESTIONS-............................................................................................................6

OBJECTIVES OF THE STUDY-...................................................................................................7

RESEARCH METHODOLOGY-...................................................................................................7

MARITAL DISPUTES AND ITS TYPES......................................................................................8

 Marital disputes with Domestic Violence.............................................................................9

JUDICIAL AND LEGISLATIVE STEPS....................................................................................10

BENEFITS AND IMPEDIMENTS FACED.................................................................................12

 Benefits...............................................................................................................................12

 Impediments.......................................................................................................................13

CONCLUSION AND SUGGESTION..........................................................................................14

BIBLIOGRAPHY-........................................................................................................................15
INTRODUCTION-

“Marriage is the first essential cell of the society”

-Pope Francis
The change in the dynamics of the society and a deviation from the joint family structures has
led to number of the divorces. Devoid of the family pressures and financial independence though
much welcomed and sought for has led to a decrement in the sacrament of the marriage hence
rapid divorce. But the basic structure of family rests on the marriage a breakdown of it and
resultant bitter litigation not just led to increased stress leading to suicide in many case but also
an utmost negative impact on the life and mental health of the children often resulting in severe
neglect and lifelong social issues and distrust in companionship. Also it put an undue burden on
the already overloaded judiciary of the society. The following project aims at understanding the
concept of Reconciliation and mediation of marriage, legal position and steps towards saving the
marriage, the problems faced in doing so the way ahead.

Losing a member of the family in a nation were still not both of the spouse is economically
independent or educationally at per leads to the economical hindrance, impoverished
development of the children and the spouse. As per UN report 4.5% families in India is headed
by the single women, the poverty rate of such families on the other hand is 38% in comparison to
26% to the families which is headed by the two parents.1 Also the Alternative methods of the
dispute resolution is not just of significance for avoiding the divorce but even for a healthy and
amicable conduction of divorce where rehabitation together is not a possibility.

The mediation in contrast with the slow moving process of the courtroom procedure is getting
increasing approval by the spouse and even by the legislation in order to ease out the
extraordinary burden on the courts. To take the initiative the section 89 of Civil Procedure Code
was amended to incorporate the ADR or Alternative Dispute Resolution 2, if the courts deem fit
then according to the section 89 it can refer the matter to be resolved by the procedure of the

1
Ankita Pandit, Single mothers head 4.5% of all households, Times of India, Jul 8th 2019
2
The Code of Civil Procedure, 1908, no. 5, Acts of Parliament, 1908 (India).
mediation, reconciliation or Arbitration, Lok Adalats and other institutions were further
established to facilitate the process.

In the Hindu Marriage Act, 1955, the Court is directed towards reconciliation between divorce
seeking parties, depending upon the nature and circumstances of the case. 3 The Special Marriage
Act, 1954 also makes reconciliation as the option to be opted by the Court at first instance in
divorce cases.4 Section 9 of the Family Courts Act also obliges the courts to try and bring about a
settlement in family disputes.5

STATEMENT OF PROBLEM-
The increasing breakdown of marriage leads to avoidable litigation creating burden on judiciary
and a spectrum of social issues for them and their children. The laws need to be friendly for
friendly for mediation and avoid creation for more hostility and vested for interest of legal
practitioners against the resolution and mediation of the marital dispute. However the procedure
should be sensitive that for the sake of reconciliation does not put one party in an undue physical
or mental danger.

LITERATURE REVIEW-
 Kusum, 5th ed, Family Law lectures- Family Law 1, Lexis nexis-

family law including marriage and divorce, maintenance and division of matrimonial property,
guardianship and child custody, as well as adoption, as developed by the Supreme Court and
various High Courts. The author has discussed major recent judgments of the Supreme Court on
such contemporary concerns as the status of live-in relationships, and of rights of the women,
and of the children born of such relationships. The book also provides insights into contemporary
matrimonial issues that have emerged as a result of the development of new perceptions of rights
and duties, as well as alternative methods for matrimonial dispute settlement.

3
The Hindu Marriage Act, 1955, Acts of Parliament, 1955 (India).
4
The Special Marriage Act, 1954, №43, Acts of Parliament, 1954 (India).
5
The Family Courts Act, 1980, Acts of Parliament, 1984 (India).
  Yash Dhaiya, Role of Mediation in Solving Marital Disputes, Singapore Press
holdings(2020)

In this well structured Article the Author has explained the rising need of mediation. Backed
up with changing judicial mood towards ADR, the benefits of going for mediation and the
challenges growing ahead are elucidated. The writer goes in the details of the process, types
and technicalities of mediation helpful for professionals and the people in need of a dispute
resolution alike.

LIST OF CASES
 Mohd. Mushtaq Ahmed vs. State
 Gurudath K v State of Karnataka
 K Shreenivas v. D.A. Deepa
 Gaurav Nagpal v. Sumedha Nagpal
 B.S. Krishnamurthy v. B.S. Nagraj and Otrs
 G.V. Rao vs. L.H.V. Prasad
 Jagraj vs. Bir Pal Kaur
 Moti Ram Tr.Lrs. & Anr. vs. Ashok Kumar & Anr

HYPOTHESIS-
Reconciliation of the marital disputes and avoiding divorce is in benefit of the individual,
families and judiciary itself. The laws promote that and there is a increases emphasis on the it.

RESEARCH QUESTIONS-
The present research work involves the following research questions:

1. What is the importance and need of reconciliation of marital disputes?

2. What are the legal measures and the procedure which can facilitate reconciliation?
 3. What can be problems faced in the path of effective mediation and the reconciliation of
marital disputes?

OBJECTIVES OF THE STUDY-

1. To study the concept of marital disputes, its need and benefits.
2. To study the legislative and judicial imperatives taken for reconciliation.
3. To study the impediments faced in this regard.
4. Legislative and procedural solutions or reforms which can boost the process of the
reconciliation.

RESEARCH METHODOLOGY-
The method of the research is doctrinal, analytical and descriptive.
MARITAL DISPUTES AND ITS TYPES

Most of the matrimonial relations face stress at a certain point of time, 13 out of 1000 marriages
end in divorce in India6, the rate is lowest in the word but this data is widely misleading as most
women in India cannot afford the luxury of divorce for endurable yet cruel behavior and in worst
cases even in the instances of severe abuse. Also many more couples keep fighting ugly battle in
court which leads nowhere. This long process before the divorce can include with it severe
stress, loss of reputation and even violence. This ugly scenario as per Robert and Wyer (1987)
can lead to behavioral disorders in children causing difficulties in dealing with the opposite sex
and suffer poor academic performance that are often long term in nature.

The Family Court Act classifies different types of family disputes as follows:-

1. A suit or proceeding between the parties to a marriage for a decree of a nullity of marriage
(declaring the marriage to be null and void or, as the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution of marriage

2. A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial

status of any person

3. A suit or proceeding between the parties to a marriage concerning the property of the parties
or of either of them

4. A suit or proceeding for an order or injunction in circumstances arising out of a marital

relationship

5. A suit or proceeding for a declaration as to the legitimacy of any person

6. A suit or proceeding for maintenance

7. A suit or proceeding in relation to the guardianship of the person or the custody of, or access
to, any minor.

6
Adoor, India have lowest divorce rate in India, Nov,20th 2018
  Marital disputes with Domestic Violence

Also many marital disputes rise out of domestic violence and it raises a question that is the
processes of mediation ethical and safe in such cases. Section 498A of the Indian Penal Code,
1860 deals with matters of domestic violence. The offense of domestic violence is a non-
compoundable offense according to the Code of Criminal Procedure, 1908 (hereinafter referred
as CrPC). These offenses are of serious nature and courts cannot compound them. 7 However, the
courts have had a different outlook. The judiciary has shown no reluctance in adopting mediation
to settle matrimonial disputes. In the case of Mohd. Mushtaq Ahmed vs. State,8 the wife had
filed a divorce petition alongside an FIR against the husband under Section 498A IPC. The
Karnataka High Court directed the couple to mediation. The matter was settled and the wife
decided to quash the FIR. The High Court said that the court in the exercise of its inherent power
can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the
ends of justice.

In the case of Gurudath K v State of Karnataka ,9  the court held that Section 329 CrPC would not
be a bar to the exercise of the power of quashing of FIR even if the offenses are non-
compoundable. If the parties have settled the matter amicably then there is no issue. Due to this
move by the Indian courts, the accused have fewer chances of being convicted in the cases of
domestic violence. The number of domestic violence cases filed from 2003 to 2013 has increased
from 50,703 to 118,866 which amounts to a 134% increase within a span of 10 years. 10 This
stance of the court though is controversial and condones the heinous acts of domestic violence of
without any repercussions. This gives the instances of domestic violence a sort of normalcy a
result opposite of which must be the object of the judicial structure of the nation. But a counter
argument runs that if the suffering spouse would know that a formal complaint or litigation
would result in a compulsory imprisonment of her spouse, in most cases she will refrain from
doing so due to the fear of the loss of earning and financial inability.
7
The Code of Criminal Procedure, 1974, Acts of Parliament, 1974 (India).
8
(2015) 3 AIR Kant R 363
9
Criminal Petition no. 7258 of 2014
10
Pandey, G, India “fails” victims of abuse, BBC News, April 22th 2019
JUDICIAL AND LEGISLATIVE STEPS

In the case of K Shreenivas v. D.A. Deepa11

FACTS- Husband filed for divorce claiming that the wife has filed a false criminal case and have
caused cruelty on him.

HELD – The Court recognized the need for dispute resolution pre litigation and its benefits,
noticing the trivial cause of disputes which can be resolved using Alternative Dispute Resolution.
The court took cognizance of the data from the Delhi District courts that mediation when done
pre-litigation gives better result. Thus the court discussed the concept of pre-litigation mediation
and its benefits.

Further in the matter of Gaurav Nagpal v. Sumedha Nagpal12, the Supreme Court observed its
worries about increasing pendency and the flood of cases relating to the divorce or the judicial
separation. It further noted that Hindu Marriage act provides for the situations and heads under
which a divorce can be sought. But it does not mean that a divorce should be taken or granted
just because same can be done. The step of divorce should only be taken as a drastic and final
option when the marriage has been broken beyond the possibility of repair and irretrievably
broken. The focus should be on the efforts to save the marriage and seeking divorce should not
be incentivized.

The court in the above mentioned two cases have cleared its instance that steps such as Judicial
Separation and divorce should be avoided and the steps such as mediation and couples council
must be promoted. This will be beneficial both for the judiciary and to whole nation as would
promote peaceful and happier family unit.

11
K. Srinivas Rao v. D.A. Deepa, (2013) 5 S.C.C 226 (India).
12
(2009) 1 S.C.C 42.
In the case of B.S. Krishnamurthy v. B.S. Nagraj and Otrs.13 Justice Katju opined that litigation
goes on for years and in hurtful to both the parties, therefore lawyers should try to get there client
solve their matters by mediation especially In the case of family disputes.

In the case of G.V. Rao vs. L.H.V. Prasad, the court held that marriage is a child-centric
institution in our society. However, if marriage as a unit breaks down, the adjustments of various
relations are required rupturing the usual structure and peace of the family. So, the family laws
and courts mostly encourage in matrimonial disputes for reconciliation and settlement by
amicable agreement instead of litigation.

In Jagraj vs. Bir Pal Kaur, it was held by the Supreme Court that the intention of the parliament
behind enacting section 23 of Hindu Marriage Act, 1955 was to preserve the sanctity of
marriage. Therefore, every step towards the reconciliation of parties has to be carried out by the
courts.14

13
S.L.P. (Civil) No(s). 2896 of 2010.
14
Justice Manju Goel, Successful Mediation in Matrimonial Disputes Approaches, Resources, Strategies &
Management, Law Faculty, Delhi University
BENEFITS AND IMPEDIMENTS FACED

 Benefits
One of the most essential and primary benefits of mediation as a mechanism for dispute
settlement is that it can save a lot of time, cost, and also ensure confidentiality. 15 In the case
of Moti Ram Tr.Lrs. & Anr. vs. Ashok Kumar & Anr , the court held that “mediation
proceedings are confidential proceedings. When the mediator is required to send the report
of successful proceedings to the court, he doesn’t require sending what transpired during
the proceedings. In case the mediation was unsuccessful, he only needs to send the report
stating ‘Mediation has been unsuccessful’”.  The role of the mediator is to get lasting peace.
There is a mutual consensus between the parties towards reaching a solution that is acceptable to
both where they can exercise some control over the resolution. Mediation is generally less
stressful than litigation. It allows children to see their parents cooperating even when they
disagree with each other. A research by Baker McKenzie in 2004 reported that children of
divorce show higher levels of externalising behaviours which are aggressive, problematic and
impulsive in nature. They show internalising behaviours as well, such as depression, anxiety and
withdrawal. Mediation more often than not leads to joint custody, benefiting the children with a
continued future with both parents. When the parties go beyond aggression, it is much more a
comfortable alternative compared to appearing before a judge.16

Mediation promotes finality. There is no scope for any appeal or revision or further litigation in
it. Chances also are that it can help to improve or restore the relationship because there are many
such cases where the dispute is caused by trivial reasons. It is also more beneficial for the lawyer
according to the author’s personal opinion because when a lawyer recommends mediation, the
clients come out happy and chances are that the client will go back to them. Mediation is also
way more participative and parties get an opportunity to present their case in their own words. It

15
Law Reform Commission, Report Alternative Dispute Resolution: Mediation and Conciliation (November
2010)

16
Brenda L. Bacon and Brad McKenzie, Parent Education after Separation/ Divorce, 42  Family Court
Review 87, 85–98 (2004).
leads to better compliance as the parties themselves have agreed and signed on the settlement.
The implementation of a non-adjudicatory, non-judicial mechanism for dealing with matrimonial
breakdown would compel a basic reassessment of the society’s conception of divorce.¹⁷ The
realities of contemporary divorce the number of cases pending and the general dissatisfaction
should prompt legislative bodies to make alternative mechanisms available for divorcing
couples. Finally, mediation can also lead to settling of related or connected cases.17

 Impediments
Mediation and Reconciliation does have limitations as well. It can lead to wastage of time,
efforts, and money if the negotiations fail. If the mediator is inexperienced then it can be
incomplete or unduly favorable to one spouse. A smart spouse may even hide assets/income
which can lead to failure of uncovering unaccounted hidden financial assets and may leave
the weaker spouse penniless. If one spouse is dominating and other submissive, the
settlement may be one-sided. Thus, it is very essential that the mediators are trained
properly and are knowledgeable.

17
Thomas E. Charbonneau, A Consideration of Alternatives to Divorce Litigation, 1986  U. III. L. Rev. 1119
(1986).
CONCLUSION AND SUGGESTION

Scope of Mediation in India is promising in India for bringing inequitable treatment and a sense
of fairness and justice in the society, mediating skills, especially unbiased communication skills
and influential bargaining strategies are to be engaged. Abraham Lincoln said “Discourage
litigation; persuade your neighbors to compromise whenever you can. Point out to them how the
normal winner is often a loser in fees, expense, cost, and time.”

Conflict cannot be averted, it can be resolved. Every relationship goes through its ups and downs
along with the cycles of life like procreating and raising children, pursue career and witnessing
economic realities of the day. The government must develop legislation for resolving
matrimonial disputes through ADR. The time has come to embrace the concept of no victor no
vanquished.

In the absence of a judicial authority the probability of a foul play and corruption increases
many fold also many criminal behaviors can get condoned without proper punishment. Thus
is become paramount importance to make awareness and veracity of the situation available
to both the spouse usually women as even today most of them are housewives with much
lower literacy rate. Also the parties have a hard time trusting their lawyers with the
mediation procedures as quick redressal of the matter is against the vested interest of the
lawyers, who would profit a lot more if the matter gets dragged in the court and litigations go
on for years. Establishment of institution which can deliver proper ADR with honest and
unbiased advice and less involvement of the practicing advocates in the matter would lead to
a healthy, fair and more meaningful reconciliation which is eminent need of the society.
BIBLIOGRAPHY-

 Brenda L. Bacon and Brad McKenzie, Parent Education after Separation/ Divorce,
42 Family Court Review 
 Law Commission Report, Alternative Dispute resolution, Mediation and Conciliation
(Nov 2010)
 Kusum, 5th ed, Family Law lectures- Family Law 1, Lexis Nexis
 Yash Dhaiya, Role of Mediation in Solving Marital Disputes, Singapore Press holdings