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Resolving conflicts of Family Disputes during Covid-19 through Mediation: A positive approach

The expressive ones may show up with many symptoms of anxiety, tension and bewilderment by living in close confines for 24 hours a day with their partners, children and family members especially when all of us are facing economic/financial pressure and threat of coronavirus infection. Continuous stress of lockdown and spending more time with your family members may sometime lead to conflicts and arguments.

A lockdown is a very complicated scenario in which many such situations have cropped up in India resulting to domestic abuse and other forms of mental and physical torture ultimately causing a massive outbreak of conflicts amongst partners after the corona outbreak. In some cases, it has also resulted to gender conflicts at home where the homemaker has to undergo through turbulent times.

The gender equality is likely to get challenged in this lockdown situation by excluding very few cases where men step up to lead the home by taking up the responsibility of the homemaker. In India many such incidents have occurred in the past two months since lockdown where gender conflicts have resulted to lowering the density of talking terms between partners and sharing of responsibilities and duties of the genders while parenting their child especially when online schools are functioning.
 
In this unexpected scenario, Mediation in family law matters will play a major role in building parity between the genders to bring matrimonial relief with the assistance of a skilled Mediator.

This organised process by a skilled Mediator shall bring two or more persons in a family dispute to reach to reconciliation.
It is pertinent to point out that ORDER XXXIIA of the Code of Civil Procedure, 1908 provide for mandatory settlement procedures in all matrimonial proceedings which relates to:
  1. Suits or proceedings relating to matters concerning the family.
  2. In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely:
    1. a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person;
    2. a suit or proceeding for a declaration as to legitimacy of any person;
    3. a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;
    4. a suit or proceeding for maintenance;
    5. a suit or proceeding as to the validity or effect of an adoption;
    6. a suit or proceeding, instituted by a member of the family relating to wills, intestacy and succession;
    7. a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law.

Under this provision of the Code, it is the duty of the Court to inquire into facts in every suit or proceeding so far as it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant and how far the issues can be best resolved through settlement out of Court either by way of Mediation or by any other mode of Alternative Dispute Resolution preferably by Lok Adalats dealing with family matters.

Even Section 89 of the Code of Civil Procedure, 1908  states that where it appears to the Court that there exists elements of settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties the Court may reformulate the terms of possible settlement and refer the same for :- a. Arbitration, b. Conciliation, c. Judicial settlement including settlement through Lok Adalats and d. Mediation.

Probably the motive to settle any family dispute remains with the parties when such matters are referred to a Mediator.  It is not a judge or an arbitrator who finds the solution for the conflict in Mediation, but the parties themselves. However, resolving family disputes through the process of Mediation can be dealt with by keeping it a single procedure thereby controlling party autonomy. The Mediator appears to be neutral and maintain confidentiality of the matter. A Mediation cell or a competent Mediator shall try to patch up matrimonial disputes through different personal skills which may not be possible for a Judge of Court.

There is more chance of development of a unanimous decision or consensus among the genders when disputes are referred to Mediator other than through court proceedings. It is also termed to be a speedy settlement of disputes relating to marriage, family affairs and for the pursuit of the best interests of the children. Rigid rules of procedure as applicable to court shall not apply. This process of alternative dispute resolution through the process of Mediation of family matters is a cheap mode of settlement of disputes which simplifies the rules of evidence and allows parties to have fair settlement.

Section 23 subsection (2) and subsection (3) of The Hindu Marriage Act, 1955 states that before proceeding to grant any relief with regard to divorce of any matrimonial dispute, it shall be the duty of the court in the first instance in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties and further for the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

Subsections 2 and 3 of Section 34 of the Special Marriage Act, 1954 gives equal interpretation as the provisions contained in Sections 23 (2) and 23 (3) of the Hindu Marriage Act, 1955. Even though the marriage contracted under the Special Marriage Act does not follow the same procedure as marriage solemnized under the Hindu Marriage Act, 1955 but the Indian Parliament in its wisdom has retained the provisions for reconciliation in Hindu Marriage Act and Special Marriage Act through any person named by the parties whom they believe to resolve their disputes amicably.

This can be best achieved through alternative dispute resolution preferably by appointment of a Mediator if the parties are positive to come to a settlement amid the fury of Covid-19 where functioning of courts are minimise. Proceedings of Mediation through online method may also be possible and appreciable where the parties can send pre-Mediation briefs of their cases to the Mediator in the e-mail which shall help the Mediator to suggest the parties to reach amicable settlement on the date of virtual hearing of the matter.

Mediation can bring that change in the atmosphere in family courts in general when complicated proceedings in family courts possibly can be reduced through amicable solutions by the people concerned through effective Mediation and the Hon'ble Supreme Court encouraged this reconciliation process as an objective and principle while dealing with the following matrimonial matters:
In Balwinder Kaur vs. Hardeep Singh, reported in (1997) 11 SCC 701, the Apex Court has held as follows:
“A duty is also cast on the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Under sub-section (3) of Section 23 of the Hindu Marriage Act, the court can even refer the matter to any person named by the parties for the purpose of reconciliation and to adjourn the matter for that purpose. These objectives and principles govern all courts trying matrimonial matters."

In Jagraj Singh vs. Birpal Kaur reported in (2007) 2 SCC 564, Apex Court has held as follows: “It is clear that a court is expected, nay, bound, to make all attempts and endeavours of reconciliation. To us, sub-section (2) of Section 23 of The Hindu Marriage Act is a salutary provision exhibiting the intention of Parliament requiring the Court "in the first instance" to make every endeavour to bring about a reconciliation between the parties."

In Gaurav Nagpal vs. Sumedha Nagpal, reported in (2009) 1 SCC 42, with regard to the duty of Court to bring about conciliation in divorce and judicial separation proceedings, Apex Court made the following observations: "It is a disturbing phenomenon that large number of cases are flooding the courts relating to divorce or judicial separation. An apprehension is gaining ground that the provisions relating to divorce in the Hindu Marriage Act have led to such a situation.

In other words, the feeling is that the statute is facilitating breaking of homes rather than saving them. This may be too wide a view because actions are suspect. But that does not make the section invalid.

Actions may be bad, but not the section Effort should be to bring about conciliation to bridge the communication gap which leads to such undesirable proceedings. People rushing to courts for breaking up of marriage should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving marriage and not breaking it."

And In Smt. Padmavathi vs. Sri M. Suresh Ballal, ILR 2012 kar 3926, it was emphasized as follows: "Matrimonial matters must be considered by Courts with human angle and sensitivity. Delicate issues affecting conjugal rights have to be handled carefully.

Thus family Mediation will play an important positive role in resolving family disputes during this crisis which can create a constructive atmosphere for discussion and preserving an amicable and sustainable relationship between the parties in this situation of pandemic causing disruption to normal life. This is especially important when there are children involved - directly or indirectly.

Furthermore, parties might be inclined to comply willingly with the agreement, since they found the solution by themselves keeping the positivity of a conjugal healthy life, and the arrangements might be especially tailored to the circumstances of their special case and should be dealt with by a Mediator either through virtual hearing or through face to face mode keeping the social distancing norms intact of our Ministry of Home Affairs.
 
Penned by: Arnab Dutt, Advocate - High Court at Calcutta, Partner at R.L. Dutt & Co, Solicitor and Advocates

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