THE STANDPOINT OF THE COURTS VIS-A-VIS MEDIATION IN MATRIMONIAL

MATTERS

“Discourage litigation. Persuade your neighbours to compromise whenever

you can. Point out to them how the nominal winner is often a real loser—in
fees, expenses, and waste of time. As a peacemaker the lawyer has a superior
opportunity of being a good man. There will still be business enough”-
Abraham Lincoln
Having discussed the concepts and the basic provision relating to alternate dispute resolution
given in the varied legislations, it is imperative for us to discuss the view of the honourable
Supreme Court and various High Courts with respect to mediation in matrimonial matters. It
is seen in recent times that there is a preponderance matrimonial disputes. Marriage is
regarded as a social institution and it is a sacred one. The main object of a marriage is to
bestow an opportunity to a young couple to settle and lead a peaceful life. But sometimes it
so happens that a little spat between a husband and a wife takes a horrid face and transmutes
itself into a prolonged court case. More often than not it happens that a criminal complaint is
lodged which ropes in the whole family and becomes a breeding ground for acrimony and
hatefulness. It is to be mentioned that such small disputes must be nipped in the bud.

It is abundantly clear that mediation is a viable option in matrimonial dispute. We hear that
justice delayed is justice denied. Speedy justice is the need of the hour. Mediation has
emerged as one of the most widely accepted form for dispute resolution in so far the
matrimonial disputes are concerned.

CRITIQUES OF MEDIATION IN MATRIMONIAL OFFENCE- I have maintained a distinction

between matrimonial disputes in general and disputes having a tinge of criminality i.e.
Cruelty under section 498A, offences under Domestic Violence Act, 2005 and offences under
Dowry Prohibition Act, 1961. Purveyors of mediation express that mediation provides a
congenial environment for a dispute resolution which pre-empts development of
acrimoniousness between the family members. It also helps the children in the family by not
letting them go through a traumatic process of a prolonged trial. The people who criticize
mediation express their disapproval on the fact that by this process criminal are left scott-free
and hence they are not punished for their misdeeds.

There are several advantages of mediation specially in matrimonial dispute. It ensures- 1)

Confidentiality; 2) Rules of evidence law does not apply hence renders it to be a informal
process; 3) Absolute freedom to reject the outcome; 4) Equal bargaining power; 5) Cost
effectiveness.

The most attractive aspect of this process is that it is cheap and it follows the principle of
timely justice. I have discussed at a greater length the laws in India dealing with alternative
dispute resolution. Section 30 of the Arbitration and Conciliation Act, 1996 mandates that an
arbitral tribunal may use the means of mediation for the purpose of resolving disputes and
Section 89 of the Civil Procedure Code, 1908 (hereinafter to be referred as CPC) talks about
that if after framing of issues under O.14 the judge is of the opinion that there exists a scope
of settlement then the judge may refer such party to mediation. However it is abundantly
clear that section 89 of the CPC deals with civil matter. The question which looms large is
what is the scope of settlement in cases involving cruelty and dowry demand or a tinge of
criminality? The bottom line is whether such settlement is feasible or not or whether it
tantamount to leaving the criminal and tying such victim to the perpetrator?

For our purpose we are only considering cruelty. Cruelty is defined under Section 498A 1 of
the Indian Penal Code, 1860 (in short IPC). Schedule 1 of the Criminal Procedure Code, 1973
(in short Cr.PC) renders offence under section 498A IPC to be non-cognisable and non-
compoundable. Section 320 of Cr.PC talks about composition of offences. Sub-section 9 of
section 3202 state that no offence can be compounded except as provided in section 320.

Therefore it is clear that an offence of cruelty cannot be compounded under section 320 of
Cr.PC. Offences of this kind are a serious one and they are of such nature that even courts
cannot carry out a compromise. However in India courts have every now and then have
preferred to refer such matrimonial dispute to mediation regardless of the nature of the
offence.

A BRIEF CONSPECTUS OF THE JUDGEMENTS

1
Section 498A in The Indian Penal Code- 498A. Husband or relative of husband of a woman subjecting
her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be
liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her
to meet any unlawful demand for any property or valuable security or is on account of failure by her or any
person related to her to meet such demand.]
2
Section 320- Compounding of offences-9. No offence shall be compounded except as provided by this
section.
Recently Supreme Court in Ram Gopal v State of Madhya Pradesh3 opined that though the
offence under the head of section 498-A is non-compoundable in appropriate the cases if the
parties are ready to come to terms then a mediation can be ordered and if it bears fruit then
the FIR registered can be quashed under section 482 of Cr.PC. This was not done with a view
to dilute the effectiveness of section 498-A, but was done with a view to find cases where
there is chance of reconciliation. Justice Katju M. writing for the bench cautioned that judges
must be chary in giving orders for mediation as chances are there that the order might get
misused and accused might remain out of the clutches of law. He opined that- “There are
several offences under the  IPC  that are currently non-compoundable. These include
offences punishable under  Section 498-A,  Section 326, etc. of the  IPC. Some of such
offence can be made compoundable by introducing a suitable amendment in the statute.
We are of the opinion that the Law Commission of India could examine whether a suitable
proposal can be sent to the Union Government in this regard. Any such step would not
only relieve the courts of the burden of deciding cases in which the aggrieved parties have
themselves arrived at a settlement, but may also encourage the process of re-conciliation
between them.

Also in another judgement honourable Supreme Court saddled a great and an enormous
responsibility on the advocates who are the officer of the courts. It is their responsibility to
not let minor complaint turn into an exaggerated form. It is their responsibility to protect a
family and they should advice a complainant to reconcile the matter with their family
members if it is not grievous and serious. They must make serious endeavour to arrive at an
amicable solution4. It is an unfortunate scenario where a complainant is not able to visualise
the ramification of a complaint on the family relations. It is writ large that such complaint is
going to put the complainant and accused to an unbearable agony and harassment. The
ultimate object of justice is to find out the truth. However in these kinds of cases truth is
seldom found. Courts must really be cautious in dealing with these cases and must take
cognisance of the harsh reality of life. Punjab and Haryana High Court in the case of Satish
Sahni & Others v. State of Punjab & Another5 opined that- “10. As is evident from the record
that in the instant case, the parties have amicably settled their matrimonial disputes before
the Mediation and Conciliation Centre, as per terms & conditions of Compromise/Agreement

3
2010 SCALE 711.
4
Preethi Gupta v. State of Jharkhand, AIR 2010 SC 3363.
5
Criminal Misc.No.M-6526 of 2011(O&M), Date of Decision:31.05.2012.
dated 10.05.2012 in the manner stated hereinabove. Since the settlement is in the interest
and welfare of the parties, so, there is no impediment in translating their wishes into
reality and to quash the criminal prosecution to set the matter at rest to enable them to live
in peace and to enjoy the life and liberty in a dignified manner.

Experience shows that prolonged and protracted trials bring hatred, acrimony and resentment
among the family members. It is also a matter of popular understanding that there are
situation wherein if the husband or the husband’s family member had to stay in prison for a
while then chances are there that the familial ties might get ruptured beyond repair and it will
decimate all the opportunities of amicable resolution altogether. This Suffering is profoundly
painful and prolonged. In India, there is an urgent need of mediation in marriage disputes.

Herein the observation of Chief Justice of India Justice Sabharwal in the case of B.S Joshi v.
State of Haryana and ors6 becomes relevant. He opined that-“it was said that there has been
an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the
main purpose of which is to enable the young couple to settle down in life and live
peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious
proportions resulting in commission of heinous crimes in which elders of the family are
also involved with the result that those who could have counselled and brought about
rapprochement are rendered helpless on their being arrayed as accused in the criminal
case. There are many other reasons which need not be mentioned here for not
encouraging matrimonial litigation so that the parties may ponder over their defaults and
terminate their disputes amicably by mutual agreement instead of fighting it out in a court
of law where it takes years and years to conclude and in that process the parties lose their
"young" days in chasing their "cases" in different courts.

In Mohd. Mushtaq Ahmad v. State7, in this case the wife of the accused filed a divorce
petition and lodged an FIR against the husband under Section 498-A Indian Penal Code,
1860. The Karnataka High Court ordered the parties to go for mediation under Section 89
CPC. The matter was settled affably through mediation after which a petition was filed under

6
2003 4 SCC 675; Himanshu v. State of Delhi N.C.T Crl. M.C. No. 2225/2012 Date of Decision: 31st July,
2012; G.V. Rao Vs. L.H.V. Prasad, (2000) 3 SCC 693; Gian Singh Vs. State of Punjab, (2010) 15 SCC 118;
(2012) 10 SCC 303; Jitendra Raghuvanshi Vs. Babita Raghuvanshi, (2013) 4 SCC 58; K. Srinivas Rao v. D.A.
Deepa, (2013) 5 SCC 226, 241-242 : AIR 2013 SC 2176.
7
(2015) 3 AIR Kant R 363; Orissa High Court in Anita Agrawala v. Santhosh Kumar Mohanty 1997(1) OLR
487 & Karnataka High Court H.S. Uma v. G.K. Samanth Arya 1993(2) Kar LJ 529; Raghunath Prasad v. Urmila
Devi & Another, AIR 1973 All 203.
section 482 and requested the high court to quash the FIR by the exercise of inherent power.
The same was ordered.

In Gurudath K. v. State of Karnataka8, the facts are similar to the above-mentioned case.
Justice Gowda opined that, “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 exercised its inherent
power and quashed the F.I.R after coming to the conclusion that the wife is not placed under
any pernicious circumstance.

Thus it is amply clear from the afore-mentioned description that in contemporary times the
intention of the court is to settle disputes as amicably as possible. It is done solely with the
purpose to save family relationship.

This move is criticised time and again as accused have become less apprehensive of being
convicted in the cases involving domestic disputes. The lobby which criticises mediation are
of the view that the process of mediation is a sheer failure as it let the accused roam freely
and go unpunished. The lobby is also critical of the judgement of the Supreme Court which
mandates that a non-compoundable offence can be compromised and consequently due to
that a threat looms large to the society at large. NCRB reports shows that the cases of
domestic violence are increasing leaps and bounds. There is a spike of around 134% within a
duration of ten years. The critics of mediation believe that such offences must be dealt with
iron hands. They should be sentenced so that they can reform. However it is clear that courts
have accepted the fact that the offence of cruelty is non-compoundable and in appropriate
cases it will be dealt with an iron hand.

Supreme Court in the case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co.
(P) Ltd9 held that even if a case is sent for mediation the court does not lose its control over
the case. We don’t have any guidelines as to when a case can be referred to mediation. I am
of the view that cases should not be divided on the basis of compoundable and non-
compoundable. Each case should be viewed distinctly and the judge should see whether
mediation will be a feasible option for the case or not. Each case is of a different magnitude,
hence it should be measured differently.
8
Criminal Petition No. 7258 of 2014, order dated 20-11-2014.
9
(2010) 8 SCC 24.
CONCLUSION

Now it is settled that the courts are of the view that an endeavour should be made to promote
reconciliation through mediation and secure speedy justice in dispute relating to marriage and
family matters. As recently opined by the Supreme Court that India is a melting pot of many
cultures and diversity hence differences are bound to happen. So we observe a plethora of
matrimonial disputes. In the 59th Law Commission of India report it was emphasised that
disputes concerning family must not be dealt with usual procedure used in civil disputes. It
should be dealt with a much more mediation oriented approach. It should be aimed at arriving
at a settlement. It must be borne in mind that speedy justice is a fundamental right as
enunciated in the case of Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar10. It
is abundantly clear that courts are burdened with a humongous amount of cases, hence this
affects the process of dispensation of justice.

Resultantly if a divorce petition is filed along with an F.I.R alleging cruelty or if simply an
F.I.R is filed alleging cruelty then if the circumstances of the dispute permits then the matter
should be referred to mediation. Consequently if they come at terms and settle the dispute
then they may approach the honourable high court under Art. 226 r/w Section 482 Cr.PC for
quashing the F.I.R11. Hence it can be concluded that present system is suffice to tackle the
vices if any in the present legal system. Section 89 of the C.P.C is a boon for the society at
large. It is relevant that the member of the bar has a pivotal role to play. They should not
present the exaggerated version of the incidents in the complaint. If there is any scope of
settlement then it should be resorted to.

10
1979 AIR 1369, 1979 SCR (3) 532.
11
SC Mitra v Raja Kali Charan, (1928) ILR 3 Luck 287 : AIR 1928 Oudh 104 ; Bikaru, (1947) 22 Luck 391 ;
Dr Rajagopala Rao v State of Andhra Pradesh, AIR 1960 AP 184 : 1960 Cr LJ 455 ; KC Sonreka v State of
Uttar Pradesh, AIR 1963 All 33 : 1963 Cr LJ 38 ; Kurukshetra University v State of Haryana, 1977 Cr LJ
1900 :AIR 1977 SC 2229 : (1977) 4 SCC 451 . Madhu Limaye v State of Maharashtra, AIR 1978 SC 47 : 1978
Cr LJ 165 : (1977) 4 SCC 571 ;Amarnath v Haryana, AIR 1977 SC 2185 : 1977 Cr LJ 1891 ; LV Jadhav v
Shankarrao Abasaheb Pawar, AIR 1983 SC 1219 : 1983 Cr LJ 1501 ; Mohan Singh v State, 1993 Cr LJ 3193
(Raj—FB). Randhir Singh Rana v State (Delhi Admn), AIR 1997 SC 639 : 1997 Cr LJ 779 : (1997) 1 SCC 361;
Mohinder Kumar v State of Haryana, 2000 Cr LJ 4995 (1) (SC) : JT 2000 (7) SC 438 : (2001) 10 SCC 605; DB
Baij Nath Jha v Sitaram, AIR 2008 SC 2778 : (2008) 8 SCC 77; State of AP v Aravapally Venkanna, AIR 2009
SC 1863 : (2009) 13 SCC 443 ; KLE Society v Siddalingesh, AIR 2008 SC 1702 : (2008) 4 SCC 541; N Naveen
Kumar v State of AP, AIR 2009 SC 241: 2009 Cr LJ 382 : (2008) 9 SCC 800.