Author: Samidha Ramdas Chaudhari, Dr. Babasaheb Ambedkar Memorial College of Law, Dhule
To the point
Husband and wife are two aspects of a single being. In Hindu culture, wife is considered as the form of Lakshmi. Both are incomplete without each other. But today the cases of divorce are increasing. Divorce is being done for very small reasons. Arguments happen in daily life and these arguments start from differences. But it is also necessary to reduce such a rate. And to reduce this rate, it is necessary to give a chance to the relationship because two families united by the bond of marriage get separated. It affects the children, for the overall development of the children and for their upbringing, both the mother and the father play an important role in the lives of the children. Therefore, the decision to divorce should be given a chance and the opportunity is mediation. There are four types of alternative dispute resolution methods such as conciliation, reconciliation, mediation, negotiation, etc. Among them, mediation is important. It is an alternative method for the people and the aim is to get justice at a fast pace.
Use of Legal Jargon :- Law is based on the principles of fairness and efficiency. Many laws and mechanisms have been implemented to reduce the increasing burden on the courts.
Arbitration and conciliation act 1996 (section 5) :- It allows parties to voluntarily attempt to settle their disputes through mediation before initiating a lawsuit or proceeding in a court or tribunal. This section encourages parties to explore mediation as a means of resolving disputes outside of formal legal channels.
Arbitration and conciliation act 1996 (section 18 ) :- Section 18 of the Arbitration and Conciliation Act, 1996, mandates equal treatment of parties in arbitral proceedings. This means that each party must be given a full and fair opportunity to present their case. The section ensures that no party is unfairly disadvantaged and that the arbitral process is conducted in a manner that is impartial and just.
Hindu Marriage Act 1955 (Section 13):- Section 13 of the Hindu Marriage Act, 1955 defines the grounds for divorce. It allows either party to a Hindu marriage to apply for divorce on specific grounds such as adultery, cruelty, desertion, conversion to another religion, mental disorder or venereal disease. Additionally, a joint petition for divorce can be filed by mutual consent if the couple has been living separately for a year or more and agree that the marriage should be dissolved
Special Marriage Act, 1954: This act allows for marriages between individuals of different religions or castes and includes provisions for divorce.
Code of Civil Procedure, 1908: Section 89 of this code provides for settlement of disputes through arbitration, conciliation, mediation, and Lok Adalats.
Protection of Women from Domestic Violence Act, 2005: -This act provides legal protection to women against domestic violence. Only after the democratization of the family and a change in men’s behavior will violence against women stop and the equality guaranteed by the Constitution, as desired by Babasaheb, will be established in the home. Therefore, it is imperative to effectively implement the Protection of Women from Domestic Violence Act, 2005.
The proof :- It is difficult to say what the cause of marital conflict will be. Sometimes it is mental and sometimes it is physical. In marital disputes, various authorities can be involved depending on the nature of the disagreement and the stage of the conflict. These include Family Courts, Lok Adalats, the National Commission for Women, police authorities, and even the Ministry of External Affairs for cases involving Non-Resident Indians (NRIs). Mediation and counseling are also encouraged as part of the process, often initiated by the courts.
The types of authorities that resolve matrimonial disputes are as follows:-
Family Court :- Family courts play a crucial role in resolving marital disputes by providing a specialized forum focused on conciliation, speedy settlements, and the well-being of all parties involved, particularly children. They prioritize amicable solutions and aim to preserve family relationships while addressing legal matters like divorce, custody, and property division.
Lok Adalat :- Lok Adalats play a significant role in resolving marital disputes by providing a platform for amicable settlement through compromise and conciliation, outside the traditional court system. These “People’s Courts” offer a speedy, cost-effective, and relatively less adversarial approach to resolving family conflicts, including divorce, child custody, and property division. Lok Adalats provide a valuable and effective mechanism for resolving marital disputes in India. By promoting conciliation, offering speed and cost-effectiveness, and ensuring accessibility, they play a crucial role in helping families find peaceful resolutions outside the traditional court system.
National Commission of Women:- NCW conducts legal awareness programs to educate women about their rights under various laws related to marriage, divorce, and domestic violence, empowering them to seek legal recourse when necessary. NCW provides legal aid and assistance to women involved in marital disputes, helping them navigate the legal system and access justice. NCW encourages the use of mediation and conciliation as alternative dispute resolution methods to resolve marital disputes amicably, reducing the need for lengthy and costly litigation. NCW plays a significant role in protecting women from domestic violence during and after divorce proceedings, ensuring they have access to legal remedies and protection orders
Police Authorities:- In marital disputes, the police’s primary role is to maintain law and order and to protect individuals from violence or threats of violence. They also have a duty to investigate reported crimes, including those related to domestic violence. However, the police are generally discouraged from interfering in civil disputes like divorce or property matters, which are best addressed through the courts. While the police can intervene in criminal matters related to marital disputes, they are generally not involved in resolving civil disputes like divorce or property settlements. They should guide parties towards appropriate legal channels for these matters. The police also play a role in preventing marital disputes by addressing the root causes of conflict, such as domestic violence and dowry-related issues.
Mediation Centre:-Mediation centers offer a safe space for couples to express their concerns and listen to each other’s perspectives, fostering better communication and understanding. A trained mediator helps manage the conversation, ensuring both parties feel heard and respected. Mediation can help protect the well-being of children by reducing conflict and promoting positive co-parenting arrangements. Mediators can guide discussions on child custody, support, and visitation, ensuring the best interests of the children are prioritized. Mediation can help couples maintain a functional relationship, especially when children are involved, by fostering communication and cooperation. Even if a couple decides to separate, mediation can help them do so amicably and respectfully.
Abstract:- Family is the foundation of society and marriage is considered the foundation of culture in that society. In Hindu culture, marriage is considered a sacred and eternal bond, but if a marriage breaks down, it has serious consequences for the children and the family. Sometimes, due to small things, a mother has to be separated from her children and sometimes a father from his children. That is why it is important to maintain the relationship and give that relationship a chance. The Indian judiciary also encourages parties involved in marital disputes to reach an amicable settlement and resolution instead of going to court. This is called mediation, which is a process of settlement that is conducted by the courts or by an individual. In the mediation process, the parties are asked to explain the reasons for the marital dispute and their views on divorce. They are called together to resolve the problems that are causing them to seek divorce and to discuss the solutions to the problems so that they can live happily ever after. A large number of divorce cases involve domestic violence and are one of the most frequently handled cases by mediators. That is why mediation has been accepted as a way to resolve marital problems and it is considered important to mediate such cases before taking them to court. Mediation is the most effective alternative dispute resolution strategy in cases relating to family and matrimonial disputes. What makes this method so useful is that it focuses on non-coercive and consensual process to resolve disputes between the parties. This method not only saves time but it also diminishes the probability and possibilities of any ill feeling and estranged relationships which might come out as a result in case the parties choose to go for litigation. This is the reason why the process of Mediation has been widely accepted for resolving family disputes not only in India, but also in many foreign countries like United States, Canada and England. In case of family and marital disputes, it becomes very difficult for the disputants to open up in front of a third party because the conflicts might be very personal to them and they might not be comfortable enough to discuss their grievances openly. Here, it becomes the duty of the mediator to make sure that the parties to the dispute gain the confidence of the mediator and speak up about their problems of whatsoever nature. It is the role of the mediator to elicit the facts from the point of view of both the contending parties and he would reformulate them in a clearer and expressed manner to let the parties focus on the actual troublesome areas of conflict rather than simply beating around the bush, thus giving an opportunity to the parties to come up with creative solutions which might not be possible in a third party imposed legal solution.
Case Law :-
In Gurudath K. v. State of Karnataka[3], the facts are identical to the case above. Here the court stated, “Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably … Section 320 CrPC would not be a bar to the exercise of power of quashing of FIR or criminal complaint in respect of such offences.” Thus, the court allowed for the offences to be compounded on coming to the conclusion that the wife was under no threat or coercion for the same.
In K. Srinivas Rao v. D.A. Deepa , the Court held: – though offence punishable under Section 498-A IPC are not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation…. The Judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law…. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest.
In the case of Mohd. Mushtaq Ahmad v. State before the Karnataka High Court, conflicts between the couple surfaced following the birth of their daughter. The wife initiated a divorce petition and lodged an FIR against the husband under Section 498A of the IPC. The High Court, invoking Section 89 of the Civil Procedure Code, directed the parties to attempt mediation.
The Karnataka High Court allowed the wife’s petition and quashed the criminal proceedings under Section 498A IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, concluding that doing so was necessary to meet the ends of justice. The court aims to resolve disputes as amicably as possible, aligning with the principles of mediation, which focus on preserving family relationships and delivering swift justice.
4) Manas Acharya vs. State & Anr Case –
In this case the court issued an even more pro mediation approach wherein it highlighted that the settlement obtained in mediation is legal and valid and the decision taken in the mediation process is binding on both the parties.
Dr. Jaya Sagade vs. The State of Maharashtra[12]
Here the circular which was passed by the Maharashtra Government stating that a party can opt for mediation without going to the court and only the cases related to domestic violence should be first filed and then the parties can go for mediation.
Conclusion
Globally, alternative dispute resolution is slowly and steadily becoming the preferred and prescribed mode for settling disputes outside the court of law. Even many multinational corporates including large business conglomerates are seriously looking into the advantages of settling disputes through mediation and have also started considering it as an alternative to litigation because it avoids the lengthy and expensive proceedings of the courts in India. The multiple levels of appeal also tend to exhaust both the parties and make it a burden on the system of courts. The Indian Legislature, promoting the mediation route, has also been attempting to link the bridges so as to fall in line with the evolving global jurisprudence. The Matrimonial disputes are not easy to handle as it affects all the people who are connected to marriage not just physically but also mentally. The court proceedings can be hectic as the couples have to be present before the court for the hearing and it’s not just about one hearing but many hearings, more years and more time-consumption. Mediation plays an important role which is speedy and less expensive method of the ADR to solve the matrimonial disputes outside the court. Because there are thousands of unresolved issues in courts, pursuing mediation alleviates the pressure on courts. As a result, the process is highly efficient. Mediation is an informal court process in which couples are given solutions to restore their marriage rather than being judged. After the mediation procedure is over, the couple has the option of giving their marriage another try or filing a petition for divorce in court. Mediation settlements have been achieved with the consent of both parties. Mediation facilitates mutually accepted settlements that are beneficial to everyone’s interests. Mediation shifts disputes from win-lose to win.
FAQS
1) Who can participate in meditation ?
Answer – All disputing parties and all the important stakeholders in the matter come to the mediating table. Where the disputant is a company or a firm, It should be represented by an officer who has the authority to take the decision to settle the case. Parties are advised to bring their lawyers.
2) Dose mediation affect the legal rights of a party before a court?
Answer – No. Mediation is an opportunity for parties to amicably resolve their disputes. Parties can avail of Mediation before filing a case in Court. Parties can also avail of Mediation services at any stage of their litigation in Court. If Mediation fails, their rights before the Court remain intact. If a settlement is signed, they are bound by the settlement
3) What about confidently in meditation?
Answer – It is of utmost importance. Confidential information can be shared by the parties with the Mediator who does not disclose the same to the other side unless any party wants it to be so disclosed. Such confidential information does not form part of the Court’s record. All matters relating to the proceedings are to be kept confidential because trust in the Mediator is the crux of Mediation. Views, suggestions, admissions, statements made, evidence produced, proposals made during Mediation proceedings cannot be used in any legal proceedings.
