Back when the four walls of one’s house were considered to be completely ‘out of bounds’ for an outsider, it was then that the notion of marriage that was deemed to be highly ‘sensitive’ and ‘personal.’ Sharing details about one’s marital life, in particular one’s marital squabbles, was commonly looked down upon. Couples in those days were marred with the unfortunate dilemma of choosing between keeping mum (the more ‘acceptable’ choice) or choosing to file for a divorce (a choice commonly attracting societal condemnation). Therefore, couples choosing the former would tend to remain hung up on their egos, which contributed to nothing except further disintegration of marital ties and a tense atmosphere at home, doing both of them no good.
The increasing acceptability of the counselling procedure, coupled with the spouses’ innate desire to restore their marital relation has contributed to the rise of matrimonial mediation. In India, mediation has formally been recognised under Section 30 of the Arbitration and Conciliation Act, 1996. Recognising the enormous potential of mediation to reduce judicial backlog, the Indian Parliament, in 1999, amended the Civil Procedure Code to insert Section 89, whereby Courts could refer existing disputes to mediation. Section 9 of the Family Courts Act, 1984 also specifies the need for a settlement mechanism in Family Law disputes. Thus, India currently houses two types of mediation: Private Mediation, whereby a qualified mediator appointed by the parties helps them to arrive at a plausible settlement; and Court-Referred Mediation, which is generally ordered by a Court during the pendency of a marital dispute.
Mediation has various advantages, specifically for matrimonial disputes. In most cases, it is observed that couples wish to reconcile but are unable to do so, mainly because they are incapable of voicing their concerns to their spouse. Mediation, through its confidential procedure and presence of a neutral third party, thus provides them the requisite platform to discuss such problems and understand one another. Owing to the sensitive nature of such disputes, spouses often find it hard to disclose certain sensitive, however material details, in a court of law. Furthermore, Court proceedings have a tendency to create animosity between the couple, which could lead to them completely severing ties from one another. This becomes detrimental when there are issues such as custody, which involve the interest of another person as well.
It was in light of the above concerns that Courts decided to expand the scope of matrimonial mediation, even in cases where criminal charges (such as cruelty under Section 498A of the Indian Penal Code) were alleged by either of the spouses.
In Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. Pvt. Ltd. and Ors.,(i) the Supreme Court specifically held matrimonial disputes to be a “suitable” category for reference to mediation. Through its landmark verdict subsequently in K. Srinivas Rao v. D.A. Deepa,(ii)the Court also encouraged couples to opt for mediation, and urged Family Courts to refer cases to mediation before the commencement of formal litigation proceedings. It also granted mediation centres the right to deal with criminal offences, whilst ensuring that the “exercise, rigour, purport and efficacy of Section 498A of the IPC is not diluted.”
Today, matrimonial mediation has, through jurisprudence of Indian Courts, become the first step to resolving such disputes. The Karnataka High Court, in Bhavana Ramaprasad v. Yadunandan Parthasarathy,(iii) specifically noted an error in the Family Court’s judgment of not initially referring the marital dispute to mediation, pointing that this lead to “irreconcilable differences” between the parties. The Allahabad High Court, in the important guidelines issued in Re: In the Matter of Matrimonial Disputes v. The State of U.P. and Ors.(iv) has reiterated the importance of opting for out-of-court settlements to aid such cases.
Thus, it is generally observed that Courts today prefer the matrimonial mediation as a source of settlement for couples, and rightly so, for it is not only an ideal atmosphere for the parties, but also keeps in mind their best interests.
(i) Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. Pvt. Ltd. and Ors., (2010) 8 SCC 24.
(ii) K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226.
(iii) Bhavana Ramaprasad v. Yadunandan Parthasarathy, MANU/KA/2417/2014.
(iv) Re: In the Matter of Matrimonial Disputes v. The State of U.P. and Ors., Criminal Misc. Writ Petition No. 3322 of 2010.
This article is written by
Parina Muchhala of
Maharashtra National Law University, Mumbai.
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