Bharati Law Review, Oct – Dec, 2016 73

MEDIATION: MARITAL CONFLICT RESOLUTION THERAPY

N Bhagya Lakshmi
Abstract
Marriage and family are the two pillars of the Indian Society.
Marriage constitutes the fundamental building block of the
society. The institution of marriage occupies an important place
and role to play in the society, in general and Marriage has always
been the foundation of peace. Indian family as an institution is a
web of complex, relationships, feelings and sentiments. The family
as the smallest unit of the larger society is often under frequent
attacks of dissolution, separation and all forms of conflict. The
fast changing and social and family environment has thrown up
new challenges, particularly young generation like growing
instability, changing roles of husband and wife and tensions of
fast life. All these have resulted in the lack of harmony among
married couples. A heated discussion may develop into a conflict.
Litigation in respect of family disputes requires a special
approach. All relationship problems stem from poor
communication.
The rate of divorce in the world is becoming alarming and
geometrical in calculation. Marriages on crutches need aid and
attention. They limp and need intensive care treatment. Family or
matrimonial issues were considered too sensitive an area to be left
to the mercy or adversarial jurisprudence of the present legal
system which by its very nature involves a lot of mudslinging on
either side. To resolve the matrimonial disputes alternative
methods are important to save the family system especially
mediation and it will save time, money.
Mediation is the effective alternative remedy since it focuses on
the non-coercive and consensual process. This method of dispute
resolution not only save time but also diminish the acrimony and
estranged relationships resulting from litigation. Mediation has
found rising popularity in India, especially in case of marital
disputes. Reframing is a communication technique that goes to
the very crux of mediation, that of shifting the focus of the parties
from their positions to their interests. He will assist the parties in
identifying the relevant facts and issues. This mediation and


Teaching Associate, Damodaram Sanjivayya National Law University,
Visakhapatnam, Andhra Pradesh

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Bharati Law Review, Oct – Dec, 2016 74

conciliation processes recognised under various Legislations and

Statutes also. Judiciary also plays an important role in settling
the disputes between the married couple.
Introduction
Marriage is a socially supported union between individuals in
what is intended to be a stable, enduring relationship. It is the
basis for the family and the institution, defined by six social
functions: regulation of sexual behaviour, reproduction,
nurturance and protection of children, socialization, production,
consumption, and the passing on of ascribed statuses such as
race. Marriage and the family rest on many beliefs, the most
important of which is kinship1. Marriage is not only a social event
but also legal commitment2. The foundation of a sound marriage
is tolerance, adjustment and respecting one another. Tolerance to
each other’s fault to a certain bearable extent has to be inherent
in every marriage3.
Life comprises of several differences between and among people,
groups and nations. There are cultural differences, personality
differences, differences of opinion, situational differences.
Unresolved differences lead to disagreements. Disagreements
cause problem. Disagreements unresolved become dispute.
Unresolved disputes become conflicts4. Dispute which is arise
between the couple of the institution of the marriage known as
matrimonial dispute. A dispute may develop into a conflict. The
family as the smallest unit of the larger society is often under a
recurrent attacks of dissolution, separation and all forms of
conflict.
The fast changing and social and family environment has thrown
up new challenges, particularly young generation like growing
instability, changing roles of husband and wife and tensions of
fast life. All these have resulted in the lack of harmony among
married couples. The rate of divorce in the world is becoming
alarming and geometrical in calculation5. Marriages on crutches

1 Hemendranath Reddy & Manohar Gogia, Marriage & Divorce Law, ALT
publications, Pg.8.
2 V. Hemalatha Devi, Rural Women-Legal Awareness, Supreme Court Journal -
1990, Vol-3(sep-Dec).
3 Govt. of India 18th Law Commission 217 Report pg.9 Para 1.2.
4http://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20O

F%20INDIA.pdf accessed on 9/5/2016.

5 Vijendra kumar, Expending Horizons of Divorce under the Hindu Marriage Act,

1955, A L T 2013 (5) 21-29

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Bharati Law Review, Oct – Dec, 2016 75

need aid and attention. They limp and need intensive care
treatment6. Family or matrimonial issues were considered too
sensitive an area to be left to the mercy or adversarial
jurisprudence of the present legal system which by its very nature
involves a lot of mudslinging on either side7. Litigation in respect
of family disputes requires a special approach.
Role of Mediator
All relationship problems stem from poor communication.
Mediation is a forum in which a neutral mediator facilitates
communication between parties to promote reconciliation,
understanding, and settlement. Mediation is particularly suited to
divorces and other family law proceedings because there is likely
to be a continuing relationship between the parties, especially if
minor children are involved. Many divorcing couples find
mediation allows them to avoid the high financial and emotional
costs of a litigated divorce. Because settlement is generally
quicker, costs are reduced. Mediation also allows couples to avoid
the risks of trial, protects confidentiality, and decreases stressful
conflict. Mediation may also protect the children of a marriage
from the pain of parental conflict. Because the parties work to
create their own agreements, couples who mediate their divorce
settlement often find greater satisfaction than those who go to
trial. Moreover, the couples learn skills to help them resolve future
conflicts8.
During mediation, the parties can either decide to Part Company
on mutually agreed terms or they may decide to patch up and
stay together. In either case for the settlement to come through,
the complaint will have to be quashed. In that event, they can
approach the High Court and get the complaint quashed. If
however they chose not to settle, they can proceed with the
complaint. In this exercise, there is no loss to anyone. If there is
settlement, the parties will be saved from the trials and
tribulations of a criminal case and that will reduce the burden on
the courts which will be in the larger public interest. Obviously,
the High Court will quash the complaint only if after considering
all circumstances it finds the settlement to be equitable and
genuine. Such a course, it will be beneficial to those who

6 www.lawsenate.com/../courts-to-settle. matrimonial disputes accessed on

6/1/16.
7 Nagasila, Family courts- Anti women accessed through manupatra on
6/11/2016.
8 http://family.findlaw.com/divorce/divorce-mediation-
overview.html#sthash.KzIKVRbt.dpuf accessed on 17/11/2016

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Bharati Law Review, Oct – Dec, 2016 76

genuinely want to accord a quietus to their matrimonial disputes.

Courts also recognize ‘mediation’ as an effective method of
alternative dispute resolution in matrimonial matters and that is
the reason why courts want the parties to explore the possibility
of settlement through mediation in matrimonial disputes.
Quite often, the cause of the misunderstanding in a matrimonial
dispute is trivial and can be sorted. Mediation as a method of
alternative dispute resolution has got legal recognition now.
Courts also referred several matrimonial disputes to mediation
centres9. 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. The
Law Commission of India in its reports10 had emphasized that
while dealing with disputes concerning the family, the Court
ought to adopt an approach radically different from that adopted
in ordinary civil proceedings and that it should make reasonable
efforts at settlement before the commencement of the trial.
Further it is also the constitutional mandate for speedy disposal of
such disputes and to grant quick justice to the litigants and also
strongly recommended the need for special handling of matters
pertaining to marriage and divorce. Being trained in the skill
of mediation, they produce good results11. The idea of pre-
litigation mediation is also catching up. Some mediation centres
have, after giving wide publicity, set up “Help Desks” at prominent
places including facilitation centres at court complexes to conduct
pre-litigation mediation.
Delhi Government Mediation and Conciliation Centres, and in
Delhi High Court Mediation Centre, several matrimonial
disputes are settled. These centres12 have a good success rate in
pre-litigation mediation. If all mediation centres set up pre-
litigation desks/clinics by giving sufficient publicity and
matrimonial disputes are taken up for pre-litigation settlement,
many families will be saved of hardship if, at least, some of them
are settled.
Court as a Mediator
The Judiciary is currently inclining more towards mediation as
the most viable option for dispute settlement. Recently Apex

9 Lok adalats, outside court settlement by neutral party.

10 Govt. Of India Law Commission 45 and 59th Reports.
11 Sushil Kumar Sharma v. Union of India, AIR 2005 SC 3100 Para 18.
12 Delhi Government Mediation and Conciliation Centres, and in Delhi High
Court Mediation Centre.

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Bharati Law Review, Oct – Dec, 2016 77

court13 feel that though offence punishable under Section 498- A

of the IPC is not compoundable, in appropriate cases if the parties
are willing and if it appears to the criminal court that there exist
elements of settlement, it should direct the parties to explore the
possibility of settlement through mediation. This is, obviously, not
to dilute the rigour, efficacy and purport of Section 498-A of the
IPC, but to locate cases where the matrimonial dispute can be
nipped in bud in an equitable manner. The judges, with their
expertise, must ensure that this exercise does not lead to the
erring spouse using mediation process to get out of clutches of the
law.
The learned members of the Bar have enormous social
responsibility and obligation to ensure that the social fibre of
family life is not ruined or demolished. They must ensure that
exaggerated versions of small incidents should not be reflected in
the criminal complaints. Majority of the complaints are filed either
on their advice or with their concurrence. The learned members of
the Bar who belong to a noble profession must maintain its noble
traditions and should treat every complaint under 498a Indian
Penal Code as a basic human problem and must make serious
endeavour to help the parties in arriving at an amicable resolution
of that human problem. They must discharge their duties to the
best of their abilities to ensure that social fibre, peace and
tranquillity of the society remains intact. The members of the Bar
should also ensure that one complaint should not lead to multiple
cases14.
Unfortunately, at the time of filing of the complaint the
implications and consequences are not properly visualized by the
complainant that such complaint can lead to insurmountable
harassment, agony and pain to the complainant, accused and his
close relations15. The ultimate object of justice is to find out the
truth and punish the guilty and protect the innocent. To find out
the truth is a Herculean task in majority of these complaints. The
tendency of implicating husband and all his immediate relations
is also not uncommon. At times, even after the conclusion of
criminal trial, it is difficult to ascertain the real truth. The courts
have to be extremely careful and cautious in dealing with these
complaints and must take pragmatic realities into consideration
while dealing with matrimonial cases. The allegations of
harassment of husband's close relations who had been living in

13 Ram Gopal v. State of M.P, 2010 SCALE 711.

14 Preethi Gupta v. State of Jharkhand, AIR 2010 SC 3363.
15 Satish Sahni & Others v. State of Punjab & Another dt 31/05/2012.

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Bharati Law Review, Oct – Dec, 2016 78

different cities and never visited or rarely visited the place where
the complainant resided would have an entirely different
complexion. The allegations of the complaint are required to be
scrutinized with great care and circumspection.
Experience reveals that long and protracted criminal trials lead to
rancour, acrimony and bitterness in the relationship amongst the
parties. It is also a matter of common knowledge that in cases
filed by the complainant if the husband or the husband's relations
had to remain in jail even for a few days, it would ruin the
chances of amicable settlement altogether. The process of
suffering is extremely long and painful. There is a growing need
of mediation for matrimonial disputes in India.
"There has been an outburst of matrimonial disputes in recent
times. The 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."
The aim of law is to reconcile or ameliorate the misery as much as
possible. According to Bentham the aim of law, like life itself, is to
promote the greatest good of the greatest numbers16. It is a crying
need that there should be redressal of family law problems in a
proper legal framework. Arrest brings humiliation, curtails
freedom and casts scars forever. There is a need to develop a
dispute resolution mechanism, which can protect relationship17.
The forums for settlement of matrimonial disputes can be
conventional or modern, judicial or non-judicial, governmental or
non- governmental18.

16 A.V. Dicey, Law & Public Opinion In England, 414 (Universal Law Publishing
Co. Delhi, 3rd Indian Reprint, 2003).
17 Madabhushi Sridhar Alternative Dispute Resolution, Lexis Nexis pg.79
18 Prof. Kusum Family Law Lectures Family Law 1 third edition Lexis Nexis Pg.425

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Bharati Law Review, Oct – Dec, 2016 79

The Court19 is a vital and an extra-ordinary effective instrument to

maintain and control social order. The Courts play role of
paramount importance in achieving peace, harmony and ever-
lasting congeniality in society and resolution of a dispute by way
of a compromise between two warring groups, therefore, should
attract the immediate and prompt attention of a Court which
should endeavour to give full effect to the same, unless such
compromise is abhorrent to lawful composition of the society or
would promote savagery if the statement is fair being free from
under pressure. Meaning thereby, the High Court has unlimited
power to quash the criminal proceedings, relatable to such cross-
fights, on the basis of lawful settlement. The law laid down in the
aforesaid judgments "mutatis mutandis" is fully applicable in the
present case and is the complete answer to the problem in hand.
In Pepsi Food Ltd. & Another v. Special Judicial Magistrate & Ors20
where the court will exercise jurisdiction under Section 482 of the
Criminal Procedure Code could not be inflexible or laying rigid
formulae to be followed by the courts. Exercise of such power
would depend upon the facts and circumstances of each case but
with the sole purpose to prevent abuse of the process of any court
or otherwise to secure the ends of justice. It is well settled that
these powers have no limits. Of course, where there is more
power, it becomes necessary to exercise utmost care and caution
while invoking such powers.
The circular21 further mentions that the new provision was
welcomed by the social order, but it was also found that it was
being misrepresented. Criminal prosecution under this provision
were used for settling personal agendas which arose out of
momentary disputes between spouses, without looking to the long
term consequences. Entire families including minor school going
brother and sisters, grandchildren, unmarried and married
sisters-in law were roped in and faced prospect of arrests. In the
eventuality of an arrest, the possibility of future reconciliation
between the parties was diminished and family life was disturbed.
Therefore, the Apex Court, the High Courts and the Government
of India had been issuing directions from time to time for checking
the misuse of section 498a22. In case of arrest of the accused

19 Sanjeev Kumar & Others v. State of U.P & Others Dt. 29/03/2011.
20 (1998) 5 SCC 749
21 Ibid
22 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

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Bharati Law Review, Oct – Dec, 2016 80

should only be affected when it was imperative and unavoidable

as observed by the Hon'ble Supreme Court23. The procedure for
arrest should only be given effect to after efforts for bringing about
mediation; counselling or conciliation between the parties had
failed.
In such matters, before initiation of proceeding under cruelty, an
effort should first be made for bringing about reconciliation
between the parties by conciliation, counselling or mediation
should be got done by professional educated advisors in the
women's crime cells.
The Apex Court24 after noticing the positive features and need for
this provision for given protection to women who have been
subjected to cruelty during marriage has also drawn attention to
its potential for misuse, when for momentary disputes or for
oblique reasons entire families are roped in. It has also called on
the members of the Bar to check misuse of this provision and not
to file exaggerated complaints and to first endeavour to bring
about reconciliation between the parties so that families are saved
and there is peace in society. Even a short stint in jail drastically
reduces the chance of compromise. The legislature and law
commission have also been called upon to consider bringing about
pragmatic changes in the related provisions for furthering the
aforesaid objectives.
In Ramgopal v. State of M.P.25 the Apex Court has suggested to the
Central Government and to the Law Commission to consider
making offences under section 498 A IPC compoundable and
bailable. Similar suggestions were given by a division bench of
this Court in Rajeev Verma v. State of U.P.26that the said offence
could be made compoundable with the permission of the Court27.

extend to three years and shall also be liable to fine. 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
23 D.K. Basu v. State of W.B., decided on 18.2.1996

24 B.S. Joshi v. State of Haryana (2003)4 SCC

25 2010 (7) SCALE 711

26 2004 Cri.L.J 2956

27 Section 320 of Criminal Procedure Code

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Bharati Law Review, Oct – Dec, 2016 81

Full Bench of Court28 in Amravati and another v. State of U.P29 and

a division bench of this Court in Sheoraj Singh @ Chuttan v. State
of U.P. and others30, thereafter the Magistrate concerned may try
and bring about reconciliation between the parties either by
himself, or in districts where some agency exists for bringing
about mediation, conciliation or counselling, through the said
agency.
In cases where the Magistrate is not himself engaged in trying to
bring about reconciliation between the parties, where Mediation/
Conciliation or counselling of the couples and their family
members has been undertaken by some other agency, the said
agency must report the fact of failure or success of the mediation/
conciliation etc. within a week of the conclusion of the exercise.
Only when the Magistrate comes to the conclusion that the efforts
for mediation or conciliation between the parties has failed, he
may pass orders on the bail plea of the various accused persons
on merit. By complying with these general directions the undue
pressure on the High Court requiring filing of individual writ
petitions, in cases where reports under section 498 A IPC are filed
against husbands or other family members, causing a huge
backlog of arrears, leaving little time for the High Court to deal
with murder appeals and other major matters, would be
considerably reduced.
It was also suggested at the bar that the police officer entitled to
facilitate mediation or conciliation should be at least of the rank of
a Circle Officer. The State government should also render all help
even at stage when the complainant approaches the police station,
on the lines suggested above. Police officials being the first point
of contact when reports are lodged by the aggrieved wife or her
family, if an attempt at reconciliation is made right from that
stage and unnecessary arrests are initially avoided as suggested
in the DGP's circular dated 13.10.10, it may succeed in nipping
the problem in the bud, especially where there are no injuries on
the victim and the crime complained about is not so grave, and it
is not a repeated offence. It would also help the police officers in
being sensitized to the philosophy that crimes arising from
matrimonial disputes are of a different nature from regular
crimes, and in such offences first an attempt needs to be made for
bringing about reconciliation between the parties, and the

28 Allahabad High Court

29 2005 Cri.L.J. 755
30 2009(65) ACC 781

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Bharati Law Review, Oct – Dec, 2016 82

accused are not to be arrested straight away unless the offence is

of grave nature or there is likelihood of recurrence of violence.
When matrimonial disputes were settled amicably, as held by the
Apex Court31 it is not in the interest of justice to continue the
prosecution. The affidavit filed by the first respondent wife
establishes that subsequently due to the intervention of mediators
entire matrimonial disputes were settled amicably between the
husband and wife and consequent to the settlement, she has no
grievance against the petitioner and has no objection for quashing
the proceedings. In such circumstances, it is not in the interest of
justice to stand on technicalities and continue the prosecution.
The Courts32 in India are now normally taking the view that
endeavour should be taken to promote conciliation and secure
speedy settlement of disputes relating to marriage and family
affairs such as, matrimonial disputes between the couple or/and
between the wife and her in-laws. India being a vast country
naturally has large number of married persons resulting into high
numbers of matrimonial disputes due to differences in
temperament, life-styles, opinions, thoughts etc. between such
couples, due to which majority is coming to the Court to get
redressal.
In its 59th report, the Law Commission of India had emphasized
that while dealing with disputes concerning the family, the Court
ought to adopt an approach radically different from that adopted
in ordinary civil proceedings and that it should make reasonable
efforts at settlement before the commencement of the trial.
Further it is also the constitutional mandate for speedy disposal of
such disputes and to grant quick justice to the litigants. But,
Courts are already over burdened due to pendency of large
number of cases because of which it becomes difficult for speedy
disposal of matrimonial disputes alone.
As the matrimonial disputes are mainly between the husband and
the wife and personal matters are involved in such disputes, so, it
requires conciliatory procedure to bring a settlement between
them. Nowadays, mediation has played a very important role in
settling the disputes, especially, matrimonial disputes and has
yielded good results. The Court33 must exercise its inherent power

31 B.S. Joshi and others v. State of Haryana and another (2003) 4 SCC 675)
32 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
33 Raghunath Prasad v. Urmila Devi & Another, AIR 1973 All 203

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Bharati Law Review, Oct – Dec, 2016 83

under section 482 of Criminal Procedure Code34 to put an end to

the matrimonial litigations at the earliest so that the parties can
live peacefully.
It is a well settled law that where the High Court35 is convinced
that the offences are entirely personal in nature and therefore do
not affect public peace or tranquillity and where it feels that
quashing of such proceedings on account of compromise would
bring about peace and would secure ends of justice, it should not
hesitate to quash them. In such cases, pursuing prosecution
would be waste of time and energy.
In K. Srinivas Rao v. D. A. Deepa36 the Apex Court issued
directions to all courts dealing with matrimonial disputes to settle
all matrimonial disputes at first instance through the process of
Mediation. The Supreme Court directed Family Courts and
Criminal courts to refer parties to Mediation Centres to settle
disputes through settlement under mediation. Mediation is an
alternative process of resolution of disputes by trained mediators.
The Supreme Court of India directed Family Courts in view of
section 937to make all possible efforts to settle matrimonial
disputes especially in relation to maintenance, child custody etc.
through the process of mediation and to refer parties to mediation
centres with the consent of parties. The apex court observed that
the family courts should endeavour settlement of disputes
through the process of mediation even after the filing of failure
reports by counsellors.
The Family Courts take the help of Counsellors in settling
matrimonial disputes during the course of trial38. The Court
further observed that family court should set reasonable time-
limit for the completion of the mediation process by the mediation
centre so as to not cause any further delay in resolution of
disputes by the family courts and observed that they may extend
the time limit for mediation proceedings.

34 Section 482 0f Criminal Procedure Code, 1973, Saving of inherent power of High
Court-Nothing in this Code shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as may be necessary to give effect
to any order this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.
35 Wasi Haider & Others v. State(Govt of NCT of Delhi) & Another dt.08/04/2016
36 (2013) 5 SCC 226
37 Family Court Act, 1984
38 Section 6 of Family Court Act, 1984

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Bharati Law Review, Oct – Dec, 2016 84

The Courts in India are now normally taking the view that
endeavour should be taken to promote conciliation and secure
speedy settlement of disputes relating to marriage and family
affairs such as, matrimonial disputes between the couple or/and
between the wife and her in-laws. India being a vast country
naturally has large number of married persons resulting into high
numbers of matrimonial disputes due to differences in
temperament, life-styles, opinions, thoughts etc. between such
couples, due to which majority is coming to the Court to get
redressal. But, Courts are already over burdened due to pendency
of large number of cases because of which it becomes difficult for
speedy disposal of matrimonial disputes alone.
The inherent powers of the High Court ought to be exercised to
prevent the abuse of process of law and to secure the ends of
justice. The incorporation of inherent power under section 482 of
Criminal Procedure Code, 1973 is meant to deal with the situation
in the absence of express provision of law to secure the ends of
justice such as, where the process is abused or misused; where
the ends of justice cannot be secured; where the process of law is
used for unjust or unlawful object; to avoid the causing of
harassment to any person by using the provision of criminal
procedure code, or to avoid the delay of the legal process in the
delivery of justice.
Mediation under Legislations
Legislations and Legislative provisions related to settlement of
matrimonial dispute are Hindu Marriage Act, 1955, Special
Marriage Act, 1954, Family Court Act, 1984, Civil Procedure Code,
1908, Legal Service Authority Act, 1987. The concept of resolution
of dispute through arbitration, mediation, conciliation and
negotiation was institutionalized by Legal Services Authority Act.
The said Act39 provides for holding Lok Adalats where disputes are
pending in courts of law.
The concept of family Court implies an integrated broad based
service to families in trouble, to preserve the family and to help
stabilize the marriage. The family Court system visualizes laying
down a less formal procedure, where legal technicalities and
technical procedures are not to be followed, to do away with the
traditional adversary or fault oriented approach. The aim should
be to provide dignified means for parties to reconcile their
differences and to reach amicable settlements without the need for

39 The Legal Services Authority (Amendment) Act, 2002 provides for a radical
change.

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Bharati Law Review, Oct – Dec, 2016 85

trial; help avoid frivolous litigation; encourage pre-trial negotiation

and settlement.
The main object of the Act40 to provide for the establishment of
Family Courts with a view to promote conciliation in and secure
speedy settlement of disputes relating to marriage & family affirms
and for the matters there with. Though the Family Courts Act,
1984 was conceptualised within a simplistic premise of speedy
settlement or reconciliation, currently in metropolitan cities, the
litigation has become extremely contested and involves high
economic stakes. Matrimonial litigation in metropolitan cities is
becoming extremely complex and extends far beyond the premise
of speedy settlement or reconciliation41.
Matrimonial disputes particularly those relating to custody of
child, maintenance, etc. are pre eminently fit for mediation.
Section 942 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.
The law is well-settled that question as to whether a statute is
mandatory or directory depends upon intent of the Legislature
and not on the language in which the intent is clothed. The
meaning and the intention of the Legislature must govern and

40 Family Court Act, 1984

41 Flavia Agnes, Family Law Vol. II, Marriage, Divorce, and Matrimonial Litigation,
Oxford Publication Page.319
42 Duty of Family Court to make efforts for settlement.-

(1) In every suit or proceeding, endeavour shall be made by the Family Court in the
first instance, where it is possible to do so consistent with the nature and
circumstances of the case, to assist and persuade the parties in arriving at a
settlement in respect of the subject-matter of the suit or proceeding and for this
purpose a Family Court may, subject to any rules made by the High Court,
follow such procedure as it may deem fit. -(1) In every suit or proceeding,
endeavour shall be made by the Family Court in the first instance, where it is
possible to do so consistent with the nature and circumstances of the case, to
assist and persuade the parties in arriving at a settlement in respect of the
subject-matter of the suit or proceeding and for this purpose a Family Court
may, subject to any rules made by the High Court, follow such procedure as it
may deem fit."
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that
there is a reasonable possibility of a settlement between the parties, the Family
Court may adjourn the proceedings for such period as it think fit to enable
attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in
derogation of any other power of the Family Court to adjourn the proceedings.

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Bharati Law Review, Oct – Dec, 2016 86

these are to be ascertained not only from the phraseology of the

provision, but also by considering its nature, design and the
consequences which would follow from construing it the one way
or the other
Where the family Court does not direct parties for reconciliation
the ultimate decision of the Court either way is not rendered
invalid for non-compliance of the provisions of Section 9 of the
Family Court Act, 1984. Therefore, the provision is neither
'mandatory' nor directory but casts an onerous duty on the Court
to make a sincere endeavour for settlement to save the estranged
couple breaking away from the company of each other.
In the case of S. Thankikodi v. Ramuthayee 43, the Court while
dealing with the matrimonial cases, according to section 23(2) of
Hindu Marriage Act, 1955 casts a duty on the Court in the first
instance to bring about reconciliation between the parties in the
matrimonial cause. But according to the Court, it is only when the
Court finds that there may be some chance of saving
the marriage that the Court would try to make a rapprochement
and not otherwise.
Hindu Marriage Act, 1955, Section 23(2) & (3) provides "Before
proceeding to grant any relief under this Act, it shall be the duty
of the Court, in the first instance, in every case where it is
possible to do so consistently with the nature and circumstances
of the case, to make every endeavour to bring about reconciliation
between the parties." In view of this provision44 of law, it is the
duty of the trial Court to make every endeavour to bring about
reconciliation between the parties. This duty is to be performed
consistently with the nature and circumstances of the case. The
object behind this provision is to provide all help in the
maintenance of marital ties and restoration of peace to the
estranged couple. Emphasis is, however, laid that steps for
bringing about reconciliation between the parties should be taken
by the Court "in the first instance." In other words, the endeavour
should be made right from the start of the case. This does not,
however, mean that the attempt for bringing about reconciliation
can be made only at the initial stage of the case and not at any
later stage. The effort in that direction should be made by the
court whenever the circumstances of the case warrant it to do so.
The Hon’ble Supreme Court of India has pronounced a landmark
decision “Salem Advocate Bar Association, Tamil Nadu v. Union of

43 AIR, 1986 Madras 263

44 Section 23(2) of Hindu Marriage Act,1955

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Bharati Law Review, Oct – Dec, 2016 87

India”45, where it held that reference to mediation, conciliation

and arbitration are mandatory for court matters. This judgment of
the Supreme Court of India will be the real turning point for the
development of mediation in India. But the growth of mediation
should be carefully moulded so that the system gains the faith
and recognition of the litigants.
Conclusion
It is seen that in court-administered schemes, matrimonial
disputes form a major portion of cases referred to mediation.
Society, therefore, needs mediators in this field who can bring
sensitivity and empathy to the handling of the dispute and help
parties find solutions to the problem of breakdown of intensely
personal relationships. Parties will come soon to realise that the
mediation process far outweighs the other methods of dispute
resolution and will take recourse to it earlier than later.
It is in the interest of the stability of the society that marriages are
not to be easily broken and disrupted. It is in the interest of public
policy to maintain the continuance of matrimonial relations and to
prevent, as far as possible, disruption of the same, at the instance
of any of the parties to a marriage. This method of dispute
resolution not only save time but also diminish the acrimony and
estranged relationships resulting from litigation. Mediation has
found rising popularity in India, especially in case of marital
disputes.
In the marital proceedings the entire purpose of relief is annulled
if it is delayed physically and emotionally the parties are wrecked
with little or no chances of remarriage . To preserve future
relationships alternative dispute resolution mechanisms are
preferred and it should be the solution for peace. It was so upset
situation that the alarming rise in divorce cases in recent years,
but mediation offers a glimmer of hope for many couples to
resolve their disputes. It is our responsibility to protect marital
relationships through advisory and conciliation services.



45 (2003) 1 SCC 49

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