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.