With the increase in matrimonial disputes in India due to the ever-changing social structure as a result of literacy and economic independence among married couples and mostly among women, the traditional courts are proving to be unsuitable for such disputes. Long drawn disputes and the intimidating and unsympathetic nature of the courts result in further hostility between the disputing parties, no practical solution and mental trauma. In such a situation, the parties need a smoother process andconsensual decision-making. This is wheremediation comes into picture. Various case studies show that mediation has come as the perfect solution to matrimonial disputes when courts failed to do so. This article seeks to study the related problems and the need to further strengthen the mediation process in India.
Keywords-Matrimonial disputes, traditional courts, consensual decision-making, mediation.
In view of the huge pendency of cases in Indian courts, adoption of alternative dispute resolution mechanisms are the need of the moment. A total of 60,444 cases are pending before the Supreme Court as on 01.07.2020 and more than 3.7 million cases before High Courts and subordinate Courts have remained pending over the period of a decade. One such mechanism, mediation, refers to the application of negotiation techniques by one or more impartial third parties with the view of arriving at a consensual agreement. Section 89 of the Civil Procedure Code is the substantive as well as enabling provision, which empowers the Court to refer appropriate civil cases to ADR mechanisms.
Marriages and Matrimonial Disputes in India
The social set-up in India is ever-changing and with the increase in literacy and economic independence among couples there is a sharp increase in matrimonial disputes. As contemporary marriages are becoming prone to divorces, the adversarial process is failing to meet the demands of the aggrieved parties. Such disputes come along with various emotional, social and personal aspects unlike other contractual disputes. The traditional litigation process often proves to be unsympathetic to such needs. Due to binding decisions without mutual consensus the dissatisfied party resorts to appeals, review petitions etc. with the hope of getting a favorable decision. This leads to a prolonged and emotionally draining process without any practical outcome. Most of the times the cost incurred by the parties proves to be useless after looking at the cost of the subject matter of the suit property. On the other hand, it’s debatable if mediation is suitable for matrimonial disputes of criminal nature such as domestic violence; this will be discussed in a subsequent section.
Impact of Mediation
Mediation comes as a savior for disputing married couples. The nature of Mediation allows the parties to reach to a mutual decision; it is a consensual process and not forced upon them. By making the decision-making process much smoother and less intimidating, it also holds a scope for improvement in relationship and for reuniting the parties. Unlike court litigation it aims at diminishing the bitterness in estranged relationships instead of casing more hostility and mental agony. The legal aspects related to dissolution of family disputes via mediation are given under section 5 of the Family Courts Act of 1984.
- In the case of Mohd. Mushtaq Ahmad v. State, the wife had filed a divorce petition along with an FIR under section 498A of IPC due to ongoing disputes between the couple after she gave birth to a female baby. The matter was directed to mediation beneath Section 89 of CPC. The dispute was resolved amicably and the wife decided to quash the FIR. The Court had stated that in exercise of its inherent powers, it will quash the criminal proceedings, FIRs, or grievance in applicable cases in order to fulfill the ends of justice. Mediation helped to end the feelings of enmity between the couple and helped establishing mutual understanding that lead to the quashing of criminal proceedings by the wife. Had mediation not interfered in the case, it would have gone to a completely different direction resulting into long drawn court battles, detrimental to time, money and mental health.
- In the case, ManasAcharya v. State and Another, Delhi High Court while hearing a petition for quashing of an FIR filed under Section 498A of IPC had issued a very pro-mediation approach wherein it had declared that the settlement obtained via mediation is legal and valid and the mutual and voluntary decision taken through the mediation process is binding on both the parties.The petitioner was married to the respondent and due to disputes and differencesthe respondent had lodged the aforesaid FIR and subsequently had also filed a complaint under Section 12 of the Domestic Violence Act and a petition under Section 125, CrPC.
- In the case of Dr. Jaya Sagade vs. The State of Maharashtra, the court had set aside circular passed by the Maharashtra Government that prohibited counseling and mediation in domestic violence cases without a court order, and had declared the circular as discriminatory, arbitrary and unreasonable. The bench laid down guidelines on how pew-litigation counseling may be provided by any registered service provider as the victim must be informed about her right to choose a course of action and be] made aware about her legal rights
Problems faced by mediators in matrimonial disputes
- Lack of Awareness – Parties in a matrimonial dispute in India are not very much aware about the advantages of mediation and its impact. In such a situation, even though it is the responsibility of an advocate to advise the clients, most of them fail to do so due to their own monetary interests.
- Data gathered via interview of mediators show that the following issues are faced by them in matrimonial disputes–
- The concerned advocates’ interference – Sometimes the Lawyers of the disputing parties prove to be a major hindrance to the mediators and they keep assuring the parties that a traditional litigation would give them a better deal.
- Attitude of disputing parties – Mediation has proved to be fruitful only when the parties willingly participate and are interested in finding a solution.
- Culture and Religion – Deep rooted cultural feelings have time and again created a hurdle in taking a practical approach.
- Families of disputing parties – Families have proved to be a major hurdle as many couples are influenced by their respective families who prevent them from having a say of their own.
- Need for professional and trained mediators – Non-lawyer mediators are at significant disadvantage to family/matrimonial as a mediator must be well aware of the relevant laws along with the techniques of negotiation. 
- Domestic Violation and Mediation – In a decade since the Protection of Women from Domestic Violence Act (PWDVA) came into force, around 10,00,000 domestic violence cases have been registered in India. In case of abuse and cruelty, perpetrators might misuse mediation as a way to escape punishment. At the same time, victims will be forced to negotiate with their abusers and the very purpose of legalizing divorce will be undermined.
Conclusion and Suggestions
Mediation is most definitely a far more satisfactory and smoother way of resolving matrimonial disputes as compared to traditional litigation. It should be kept in mind that mediation is complementary and not competitive with the court. With respect to the problems faced by mediator in matrimonial disputes, it is evident that there is no straight jacket formula for a successful mediation as it is very subjective in nature and varies from case to case. Mediators thus should be given periodic trainings so that they are able to identify the cases in which mediation is suitable. Proper implementation and widespread awareness is needed for effective utilization of mediation. Awareness drives by way of seminars, workshops etc. should be conducted to make common people aware of the benefit of such amicable solutions to dispute. Lawyers play a huge role and must try to settle disputes via mediation instead of taking control over the matters and making more money out of increased disputes. Legal education in regard to this mode of dispute settlement must be provided to the students of law. The active participation of advocates, judges, law students and volunteers is quintessential to the growth of mediation. Lastly the role NGOs in the promotion of mediation is highly required as they are the closest to the underprivileged and unaware section of the society. Mediation would become a way of life and avoid friction in today’s fast moving world and also prevent the Indian judicial system from a breakdown due to the alarming pendency of cases.
The Code of Civil Procedure, No. 5 of 1908,India Code § 89.
Family Courts Act. No. 66 of 1984, India Code §5
Mohd.Mushtaq Ahmad v. State, (2015) 3 AIR Kant R 363 (India).
ManasAcharya vs. State &Anr, (2012) CRL.M.C. 2090 and CRL.M.A.14412 (India).
Dr. Jaya Sagade vs. State of Maharashtra, (2015) SCC OnLineBom 4777 (India).
Nivedita Nair, Scope of Mediation in Matrimonial Disputes in India, 8 NUALS LAW JOURNAL 154, 160 (2014).
Jaime Abraham, Limiting the Profession to Family/ Matrimonial Lawyers, Cardozo J. Of Conflict Resolution, Vol. 10, 241-268 (2008).
Yash, Mediation in Family and Matrimonial Disputes, Legal Service India, http://www.legalserviceindia.com/legal/article-1715-mediation-in-family-and-matrimonial-disputes.html (last visited Sept 4, 2020 at 05:23pm)