BY ANUPRIYA AGRAWAL, ADVOCATE
Mediation refers to a form of alternative dispute resolution (ADR) in which the parties to a lawsuit meet with a neutral third-party in an effort to settle the case. The third-party is called a mediator. It is this person’s job to listen to the evidence, help the litigants come to understand each other’s viewpoint regarding the controversy, and then facilitate the negotiation of a voluntary resolution to the case. The purpose of mediation is to avoid the time and expense of further litigation by settling a lawsuit early on in the process.
In the recent case of K
Srinivas Rao v. D.A. Deepa, Supreme Court considered the importance of
mediation as a means for settling a marriage dispute amicably. The case that,
by special leave, came before the Court was related to a dispute whereby
husband had sought divorce on the ground of mental cruelty. While
granting divorce, Justice Ranjana Prakash Desai referred to the case of Samar
Ghosh v. Jaya Ghosh, in which Supreme Court had laid down some guiding
principles for determining mental cruelty. In the instant case of K
Srinivas Rao, wife filed criminal cases against the husband and his family
members (including a case under Section 498-A). She also made an allegation
that the mother of the husband asked her to sleep with the father of the
husband. After discovering the presence of mental cruelty, court also opined
that the marriage had broken down irretrievably.
Purpose of Mediation
The cause of the misunderstanding
in a matrimonial dispute is usually trivial at first, the same, in the opinion
of the court, can be sorted out by a mediator before it takes the shape of a
furious legal battle.
Following observation was made by
the bench:
“We, therefore, feel that at the
earliest stage i.e. when the dispute is taken up by the Family Court or by
the court of first instance for hearing, it must be referred to mediation
centres. Matrimonial disputes particularly those relating to custody of
child, maintenance, etc. are preeminently fit for mediation. Section 9 of the
Family Courts Act enjoins upon the Family Court to make efforts to
settle the matrimonial disputes and in these efforts, Family Courts are
assisted by Counsellors. Even if the Counsellors fail in their efforts, the
Family Courts should direct the parties to mediation centres, where
trained mediators are appointed to mediate between the parties. Being trained
in the skill of mediation, they produce good results”
At the same time, court also
observed that there can, very often, be situations when one of the parties
files a case under Section 498A of IPC. Since offence under Section 498A is
non-compoundable, it is usually not possible to circumscribe it by means of a
settlement (“A successful mediation results into a settlement”). In fact,
Supreme Court, in Ramgopal & Anr. v. State of Madhya Pradesh & Anr.[
(2010) 13 SCC 540], had requested the Law Commission and the Government of
India to examine whether offence punishable under Section 498-A of the
IPC could be made compoundable.
As an interim solution to this
problem, the court can approve the result of mediation (“even in the presence
of a case under Section 498A of IPC”) by using its inherent powers. If a
dispute can be solved amicably and marriage can be saved, there is no point in
dragging up the issue in a litigation. In B.S. Joshi & Ors. v. State
of Haryana & Anr.[ AIR 2003 SC 1386], Court had held that
“...complaint involving
offence under Section 498-A of the IPC can be quashed by the High Court in
exercise of its powers under Section 482 of the Code if the parties settle
their dispute.”
In the instant case, court made
the following final observation:
“In terms of Section 9 of the
Family Courts Act, the Family Courts shall make all efforts to settle the
matrimonial disputes through mediation. Even if the Counsellors submit a
failure report, the Family Courts shall, with the consent of the
parties, refer the matter to the mediation centre
The criminal courts dealing
with the complaint under Section 498-A of the IPC should, at any stage
and particularly, before they take up the complaint for hearing, refer the
parties to mediation centre if they feel that there exist elements of
settlement and both the parties are willing..”
However, from my own experience
at a Family Mediation Centre, I have seen the success of mediation in
matrimonial disputes largely depends on the co-operation between the parties.
In my opinion mediation at an early stage of Matrimonial dispute saves time,
money and off course the mental harassment that both the parties have to
undergo during the long process of litigation.
