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Mandatory Mediation In Family Dispute Cases During Lockdown - An Exigency

Social distancing which has become a resultant norm of the covid-19 pandemic might have helped in battling the virus from spreading further but it has certainly ignited the home battles between the married couples who have no option but to stay in together. Had it just been about petty quarrels then it would not attract major attention but the whole shebang is regarding the spike in the domestic violence cases and divorce petitions. The lockdown has culminated into economic crisis not just for the employers but also for the employees because of lay-offs and retrenchments.

These strenuous situations have resulted in the increasing tensions between husbands and wives. Issues which start off on a small scale have often ended up in physical and verbal abuses with females on the receiving side. Job insecurity, cash crunch and anxiety are the key reasons attributable to these psychosocial problems which exacerbate the risk of violence at home.

Recent data released by the National Legal Services Authority (NALSA) suggest that the nationwide lockdown has led to a rapid increase in cases of domestic violence.[i] India has seen an unprecedented surge in the cases of domestic violence and divorce in the past two months. The highest number of domestic violence cases registered during lockdown were in Uttarakhand, then in Haryana and in the third place comes the national capital, Delhi. Mumbai, which tops the list of maximum coronavirus cases in the country, also saw the highest number of divorce cases being filed during the lockdown period and post-corona, it witnessed nearly three-fold increase in cases pertaining to divorce and women-related issues being filed.[ii] Data shared by Abhayam 181 helpline for women revealed that during 69 days of lockdown in Gujarat, they received tremendous number of phone calls from about 9420 women who called to report domestic violence including physical and verbal abuse.[iii]

Mediation – An effective solution in family matters

  1. What is mediation?

    Mediation is a form of alternative dispute resolution which is held in a private forum before any case is filed in a court or before the case proceedings in the court come to an end. The process comprises of a mediator who sits down with both the parties and discusses the issues and prepares a plan to be dealt with by both the parties. For mediation pertaining to family disputes, a mediator is a third party who is neutral and unbiased and considered to have profound knowledge or long standing experience in matters related to family law. So firstly the mediator identifies the issues which are in dispute and then he prioritizes the issues and focuses on one at a time.

    After the preparation is done, the mediator analyzes the problems faced by the parties and puts forth certain proposals for the resolution of the disputes. Thereafter he discusses every possible means of solutions which if in turn are being agreed by both the parties and they come to an agreement then it is drafted and prepared as their emerging agreement which is then to be signed by both the parties. So this is the basic process of mediation and this is how mediation works in family law cases.
     
  2. Why should mediation be made mandatory?

    In India, marriage is not just a ritual; it is considered to be an institution in itself which has a sacred value attached to it. Similarly divorce is not just splitting up of the couple but mutilation of this pious bond. And the breaking up of such ties may also transpire due to an act of domestic violence which is a heinous offense.


Now what essentially needs to be understood here is that the ongoing period of lockdown has extensively affected the mental health of couples staying enclosed within four walls. Plethora of domestic violence and divorce cases have been registered during this period. An incident as small as a fight about household chores have also aggravated to serious rifts and ultimately filing of divorce petitions. Domestic violence is also a derivative of this adverse mental condition of bread winners during lockdown. Therefore such tender family issues must not be decided by long drawn legal battles but by sitting face to face and reaching a middle ground with the help of a mediator.

Mediation is a favourable option and a process which should be made mandatory for exercising in all those cases which are instituted during the pandemic period of Covid-19. The reason behind making mediation mandatory in such cases is that all the family members are not accustomed to staying home in a state of monetary imbalance coupled with joblessness due to which the frustration is vented out in the form of an offense i.e. domestic violence which ultimately may lead to divorce. Here in these situations, cases must be handled delicately and should not be sent directly for the court proceedings. All these disputes happen in the heat of a moment because of the aforementioned factors and thereby are not appropriate to be taken up by the court directly but rather be sent for mediation process so that there is a chance of resolving the dispute.

There are lots of benefits if we adopt a system of mandatory mediation. As such, it is much easy and flexible in comparison to court proceedings. Mediation is less stressful than the court visits. The main idea behind encouraging mediation is to promote friendly cooperation which is mutually beneficial to both the parties. Even the financial factors and cost incurred in mediation are much frugal in comparison to high priced attorneys. Even the process of mediation is quick and efficacious and in addition to that, the process of mediation stays in private and is confidential.

A Progressive Approach
It is true that domestic violence is not a compoundable offence under Section 320 of Criminal Procedure Code but in many cases several courts have taken a pro-mediation approach where they believed that settlement could be achieved through mediation.

In K. Srinivas Rao v. D.A. Deepa[iv], the Supreme Court of India observed that if the parties were sent to a mediation centre then the bitterness between them would not have escalated and that the offences under Section 498A can be settled through mediation if elements of settlement exist but judges need to be careful that erring spouse should not be able to get out of clutches of law by manipulating the mediation.

Section 89 of Civil Procedure Code read with Order X Rule 1A provides for reference of cases pending before the courts to ADR and Order XXXIIA also provides that the courts shall make an endeavor to effect settlement between parties to the suits or proceedings relating to matters concerning the family. Section 9 of The Family Courts Act, 1984 also provides that it is the duty of the court to make efforts for settlement. Section 23(2) and 23(3) of Hindu Marriage Act, 1955 and Section 34(3) of the Special Marriage Act, 1954 also put obligation on the family courts to make efforts for settlement of family disputes. But these provisions give discretionary powers to the court to decide whether to refer the matters to ADR or not. They must be suitably amended to bring in the clause of mandatory mediation and render mediation compulsory before the proceedings begin in the court exempting from its ambit the exceptions provided under Section 23(2).

Since filing of the majority of abovementioned cases during the lockdown period of this pandemic is nothing but an impulsive decision on the part of either of the spouses and the disputes that have arisen are nothing but the byproduct of frustration followed by loss of temperament, making mediation mandatory for such cases is imperative. Court proceedings for such matters are bound to be adversarial and a mode of completion whereas mediation is probable of being fructuous and a mode of solution for the disputing parties.

Mediation also helps in reducing backlog of cases before the courts and subsequently aids in preserving the family structure with its collaborative approach. Thus, mediation should be made mandatory for all the divorce and domestic violence cases instituted during the lockdown after looking into gravity of the facts.

References:

  1. https://timesofindia.indiatimes.com/life-style/relationships/love-sex/domestic-violence-cases-in-india-on-the-rise-during-lockdown-says-report/articleshow/75801752.cms
  2. https://www.newindianexpress.com/nation/2020/jun/08/lockdown-impact-divorce-child-custody-cases-spike-across-country-mumbai-tops-chart-2153644.html
  3. A call of domestic violence every 10 mins, The Times of India, June 12, 2020
  4. (2013) 5 SCC 226

Quality check – Forum Parekh
Edited by – Dhruv Oza  

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