With modes of
alternative dispute resolution (“ADR”) emerging as a popular mechanism, their influence
on marriage disputes is inevitable. Further, given the delicate nature of
marriage disputes and their abysmal consequences for the couple and their
families, litigation only makes the dispute worse. This is evident from the
manner in which parties keep on accusing each other in a litigating dispute. In
litigation, instead of resolving the dispute in an amicable manner, it rather
becomes a matter of winning and losing the game. These matrial disputes,
usually arising from trivial problems, can be settled amicably at an early
stage. It is at this early stage that the
usage of alternative dispute mechanisms becomes important.
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.
What
for Mediation?
Considering the
importance of mediation in matrimonial disputes, Court noted that 10 to 15% of the
matrimonial disputes get resolved by various mediation centres. Since 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..” (Emphasis supplied)
While first observation
is appearing to be of mandatory character, the latter appears of a recommendatory
character.
This is yet another
case which shows how alternative dispute mechanisms are important. However, success
of mediation in matrimonial disputes largely depends on the co-operation
between the parties. From my own experience at a family mediation centre, I
have seen the decision of the parties getting influenced by their relatives,
parents. In such a situation, the possibility of them coming to an amicable
solution reduces. Nonetheless, there is no harm in making parties resort to such
a mechanism (at least 10-15% cases are settled by it)!
