PROCEDURE OF SETTLEMENT IN THE MATRIMONIAL CASES

MEDIATION IN THE MATRIMONIAL CASES:-

Matrimonial cases generally culminate through a process of an amicable settlement. Settlement can be done through a designated mediation center established in the courts or by the assistance of their relatives, friends, or respective counsels who are handling the cases of the parties, which is called out of court settlement. Both ways are equally good and have equal legal value. The settlement could be reached between the parties at any stage of the case and it can be done before the commencement of the case also but it is very rare as there is no proper platform where parties can be assisted in a way where parties could settle their claims and disputes. Now almost every Court have mediation centers and apart from it, in every Matrimonial Courts, a well-trained counselor has also been appointed to assist the parties to get their matter settled amicably without going through the long process of the cases which takes years to end the case. It is worthwhile to mention here that maximum cases arising out of the matrimonial disputes, end through a process of settlement. It has been observed by the court also that a Conciliatory procedure is needed to settle matrimonial disputes between couples. The constitutional mandate is for speedy disposal of matrimonial disputes and to grant quick justice to litigants, but the courts are already overburdened due to the pendency of a large number of cases because of which it becomes very difficult for speedy disposal of such issues. As the matrimonial disputes are mainly between the husband and wife and personal matters are involved in such disputes, so, it requires a conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling disputes, especially, matrimonial disputes and has yielded good results. 

WHY MEDIATION?

In matrimonial disputes, there is hardly any case where one spouse is entirely at fault. But, then, before the dispute assumes alarming proportions, someone must make efforts to make parties assisted for an amicable settlement. If at the earliest stage, before the wife filed the complaint making an indecent allegation against the husband and in-laws, she were to be counselled by an independent and sensible elder or if the parties were sent to a mediation center or if they had access to a pre-litigation clinic, perhaps the bitterness would not have escalated. Things would not have come to such an alarming stage if, at the earliest, somebody had mediated between the two. It is possible that the wife was desperate to save the marriage. Perhaps, in desperation, she lost balance and went on filing complaints. It is also possible that she was misguided.   

ROLE OF THE MEDIATOR:-

Mediation in the context of the matrimonial dispute is different in its form and content from that in the context of commercial and property disputes. The matrimonial disputes are distinct from other types of disputes on account of the presence of certain factors that are not obtained in other disputes. These factors are motivation, sentiments, social compulsions, personal liabilities and responsibilities of the parties, the views of the two parties regarding life in general and to the institution of marriage in particular, the security for the future life, so on and so forth. Talking in terms of the mediation for matrimonial disputes one must remember that the factors that weigh the decisions of the parties are not controlled simply by rational factors. Very often irrational and emotional factors also have dominant roles in the creation of the dispute as well as in their settlement. In the context of matrimonial disputes, the mediator cannot merely concentrate on the monetary or mundane aspects and overlook the emotional aspect. In fact, he is concerned with the happiness of the parties which is more a matter of sentiment than of reason. Further his/her objective is to discover a solution with no damage or minimum damage to the parties. He cannot simply go between the two sides telling him how the other party may take suggestions for a solution. The mediator has to prepare the two parties to look for a solution. Very often the parties more than looking for a solution look for their ways and means to wreak vengeance on the other party. The mediator here has to mold himself or herself into a counsellor and a conciliator to lead the parties for an amicably acceptable solution that brings about lasting peace. The mediator may have to advise the two parties and may also have to coax them to make them see the acceptability of a proposed solution. The proposal for the solution may come from either party or the mediator himself. The job of the mediator would be to continuously bridge the gaps in the proposals to arrive at a consensus.

LAW GOVERNING THE PROCESS OF MEDIATION:-

Section 9 of the Family Court Act, 1984 states the duty of the Family Court to make efforts for a settlement.-

• In every suit or proceeding, endeavor 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.

• 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 thinks fit to enable attempts to be made to effect such a settlement.

• 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. 

Section 9 of the Family Court Act, makes is it mandatory to settle a matrimonial dispute concerning maintenance, child custody, divorces, etc., through the process of mediation. It also states to refer the parties to visit a mediation center with their consent. The family court can take the help of the counselors if needed for resolving disputes. Mediation centers should give a time limit for the completion of the conflict dispute to avoid further or unnecessary delay in the matter.

COURT DIRECTIONS REGARDING MEDIATION:-

In the case of K. Srinivas Rao vs. D.A.Deepa, SLP (C) No.4782 of 2007, the apex court has issued some necessary directions, which the courts dealing with the matrimonial matters shall follow:

a) 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 center. In such a case, however, the Family Courts shall set a reasonable time limit for mediation centers to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is a good chance of settlement, the Family Court in its discretion can always extend the time limit.

b) The criminal courts dealing with the complaint under sec.498A of the IPC should, at any stage and particularly, before they take up the complaint about hearing, refer the parties to a mediation center if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigor, purport, and efficacy of sec.498A of the IPC is not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case.

c) All mediation centers shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at the pre-litigation stage.

ADVANTAGES OF MEDIATION:-

Mediation can be done simultaneously by exploring possibilities of legal action on the civil or criminal jurisdiction. It is a voluntary process and most people are attracted to the option of mediation because-

(1) it promotes the interest of the entire family including those of the children.

 (2) it reduces the economic and emotional cost associated with the resolution of family disputes.

Since it is a voluntary process sometimes the mediator may face a situation where one of the two parties or maybe even both parties show a disinclination to approach a mediator. Such inhibition has to be won over by the mediator by assuring the parties that the process apart from being voluntary provides for a participatory settlement of the dispute and the parties stand more to gain than to lose by allowing mediation in their dispute. A common experience of family court judges and others who mediate or counsel the disputing couple is that even though the parties formally express their willingness to accept a mediator or counselor, in fact, keeps their reservations. The mediator's duty is to motivate the parties to open up and bring their latent grievances to the fore. One of the skills of the mediator is to increase the ability of the participants to communicate.

PROCESS OF FILING THE DIVORCE PETITIONS:-

At the end of the mediation, when mediation is successful and parties are in mutual agreement that they will dissolve their marriage on the ground of mutual consent, so as per the mutual agreement of the parties, an MOU (Memorandum of Understanding)/ settlement agreement is prepared which are signed by the litigating parties, their witnesses as well as mediator.

After signing the MOU, the parties are required to proceed with Divorce on the ground of mutual consent under section 13B of the Hindu Marriage Act 1955. There are two motions in the Divorce proceedings under section 13 B of HMA. The first motion under section 13B (1) of HMA could be initiated immediately after signing of the MOU and the second motion petition under section 13B (2) of HMA can be filed only after the expiry of six months statuary period as required under the law. But now the Supreme Court has passed a judgment titled “Amardeep Singh Vs. Harveen Kaur Civil Appeal No.11158 of 2017” dated 12.09.2017 and by virtue of this judgment, six months of statuary period can be waived off if facts and circumstance of the case so warrants. 

When the decree of divorce in term of section 13 B of HMA is granted, the parties can move for quashing of the FIR if there is an FIR between the parties under section 498 A/406/34, etc. Quashing petition is maintainable u/s 482 of the Cr. P.C in the cases where charge sheet has been filed and U/A 226 of the Constitution of India in the cases where charge sheet has not been filed.

 So based on the terms and conditions entered in the MOU/ Settlement Agreement by the parties, all the cases pending between the parties either withdrawn or quashed, and decree of divorce is granted.