[This article has been authored by Saksham Mahajan and Hardika Kukreja, final year law students at Amity Law School, Noida.]
Keywords: Mediation u/s. 498A IPC, Mediation in Marital Disputes.
Marriage is manifestly a divine institution. In Muslim Law, once a man gets married marries, he fulfils half of his religious obligations. Contrastingly, in Hindu Law, the wife is considered to be "Ardhangini", which enunciates that the wife is to be the other half of her husband. Precariously, the fast-changing world has amplified the issues in the sacrament union of marriage, and mediation has come up as the best way to reconcile the disagreements between the husband and wife.
Mediation is different and complex in family disputes as compared to property and commercial disputes. This complexity is due to the palpable manifestation of the sentiments, responsibilities and security of the parties and their families who are involved in this whole ordeal. Moreover, mediation has taken a contrasting turn in the last few decades, as it was earlier looked down upon in our society due to rigidity among people, but in this contemporary era, mediation is seen as a positive change.
The aforementioned deliberation clearly brings forward the efficacy of mediation in the matrimonial disputes; the conundrum that arises at this juncture is whether it is viable to go for mediation in a case which is filed by an aggrieved married woman on the ground of cruelty by the husband or his relatives [Section 498A of Indian Penal Code, 1860 ("IPC")]. It mainly deals with the domestic violence cases whereby such offences under Section 498A of IPC are cognizable, non-bailable, and non-compoundable. Any case filed under this section is a criminal act, and therefore it becomes botheration to adjudicate such a dispute through the means of mediation between a married couple.
The contention in the mediation of the matrimonial disputes filed on the basis of cruelty is that the secrecy of the party in the dispute is maintained, and the couple also gets an opportunity to save the sacramental relationship within the four walls of their house. Mediation in such a situation helps the parties come to a common ground with the aid of a reconciling third party in the form of the mediator. On the other hand, the subject matter of the dispute emphasizes allowing an exception to the general principle of not mediating matters in rem; any use of mediation may encourage overlooking the rights of the woman, which could even go to prove derogatory in the enactment of 498A of the IPC or would be against its spirit.
However, all the mediation cases depend vastly on the judge’s discretion to refer the case further for mediation or not. Conversely, the chances of failure are on the referent of inappropriate cases. It has been observed that the success of mediation is more likely if the parties are educated, with no children and belong to urban areas as compared to when parties are less educated. In the cases of section 498A, the referral judge must thoroughly assess whether the parties bona fide want an amicable solution to the problem or not.
Also, Section 320 of the Criminal Procedure 1973 ("CrPC") makes this offence a non-compoundable offence, yet the courts have always referred parties to mediation in resolving matrimonial disputes regardless of the nature of the offence. In the case of Gurudath K. v. State of Karnataka, it was stated by the Court that-"Even though the offences are of non-compoundable nature, if they are related to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and with consent…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.”
It is also observed that when both a civil suit for divorce, as well as a criminal complaint for domestic violence under section 498A, has been filed, the courts first try to refer the matter to mediation under section 89 of the CrPC, which mandates referral of a case for mediation only if there is an element of the settlement. In the guidelines issued by the Delhi Mediation Centre, it has been mentioned that even if the parties have not shown any willingness to take the matter to mediation, it shall be referred to them by the referral judge if he believes that a settlement may be possible. Family Courts do have the responsibility to make efforts for settlement as they are confined to civil matters only.
The use of mediation as a form of Dispute Resolution Adjudication has been given preference for only civil matters and not for criminal matters. Exceptionally, the courts can use mediation specifically for cases related to Section 498A under the IPC, which come under the purview of domestic violence, which is a criminal matter. The Supreme Court of India has also sanctioned the use of Mediation for the purpose of Section 498A of the IPC by all criminal courts.
However, there is another side of the picture too. In this corresponding view, there is always some possibility that the parties start to take this matter in bad faith by wearing a mask of cooperation, and once the water is under the bridge, they return to their old deeds. If seen from this angle, another criminal walks away then by giving false reassurance to the court. The nature and gravity of this offence is too high to let it just be passed by. The offence being cognizable, non-bailable and non-compoundable makes it an offence of a serious nature, as highlighted above and herein again.
The courts have at times have failed to understand that the aggrieved might be forced to attend the mediation under section 89 of CPC and then withdraw the FIR by approaching the court, thus making puffery of the whole procedure of mediation. In doing so, it is to be noted that the court refers the parties for mediation in good faith. Therefore, the Judges with expertise must ensure that the mediation route has not been taken by the parties just to escape the clutches of law, even if it means that through this process, the burden on courts might reduce and save the parties from the trial.
We need to harmonize the interests of the family as a whole and the interests of the women by providing them safeguards against the violence faced by them in the households. “It’s not lack of love but the lack of communication of expressions that lead to unhappy marriages.” – Friedrich Nietzsche.