Mediation

Alice Sharma on Domestic Violence, To Mediate or Not to Mediate

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Domestic violence sadly, is rampant and common in Indian families. Section 3 of Protection of Women from Domestic Violence Act, 2005 defines Domestic violence in a comprehensive manner, comprising of physical, mental, verbal, emotional, sexual and economic abuse, harassment for dowry, and acts of threatening to abuse the victim or any other person related to her.[1]To put it into perspective a massive 31 per cent of married women have been subjected to physical, sexual, or emotional violence by their spouses. According to the National Family Health Survey (NHFS-4) report released by the Union health ministry, 27% women have experienced physical violence.[2]As the statistics point out, in the patriarchal Indian society, it has almost become a norm.

Mediation is a form of dispute resolution where in with the consent of the parties, a neutral third party called the mediator assists them in coming to a well-informed, non-binding agreement, as early as possible. Mediation is an alternative to the traditional adversarial system of dispute resolution. It is time and cost effective, voluntary, less formal and confidential and one of the imperative advantages of mediation is that it is much better able to preserve present and future relationships than the traditional adversarial system. Mediation is often seen as a helpful restorative process and it enables direct communication between parties. This is the reason of its popularity in matrimonial disputes and other family matters. Mediation referred by the court under Section 89 of Civil Procedure Code, 1908 and the Legal Services Authorities Act, 1987 (LSA) is called Court referred mediation and is very frequently done in India.

But, is presently practiced form of mediation the appropriate form of dispute resolution method for the offence of domestic violence?

Mediation is a pre-litigation or a court mandated process for family law disputes which is growing in popularity and usage. In a growing number of cases there is a mandatory provision with respect to family issues such as custody and divorce prior to court intervention.[3]Today, there is an emerging trend of referring cases related to domestic violence for family mediation. Section 498-A of the Penal Code, 1860 (IPC) deals with the offence of domestic violence, where cruelty to a woman by her husband or any relative of her husband is punishable for with an imprisonment for a term of three years and also fine.[4]

The use of mediation in domestic violence invites differing views. One group of people believe that mediation has a place in resolving domestic violence disputes and would be beneficial to the parties and to the family structure while the other group believes that mediation is not the appropriate method of dealing with the cases of domestic violence.The two schools of thought justify their views with the help of various arguments

When dealing with disputes related to families, one of the key considerations is that the dispute resolution process should not to be very harmful to the family. Thus, an effort to make the process cost and time effective is made and the process is not as formal as the traditional court proceeding. The lack of formality of the whole process makes it easier for the children of such families to cope with circumstances when compared to the court proceedings which often negatively affect a child’s emotional and physical health. Mediation serves these purposes in addition to being voluntary and non-binding, which ensures that a decision which is unfair to either party is not passed or accepted and the final power to accept or reject the outcome rests with the parties. It is due to these reasons that it can be said that adopting mediation will help in preserving the family relationships and would be ideal for cases involving domestic violence.

The Indian courts have on many occasions referred parties to mediation in resolving matrimonial disputes irrespective of the nature of the offence in India. The Supreme Court in 2013 sanctioned all criminal courts to adopt mediation, with specific regard to cases under Section 498A IPC.In the recent case of Praveen Singh Ramakant Bhadauriya vs. Neelam Praveen Singh Bhadauriya[5], decided in May 2019, where due to a strained marriage, the parties were living separately. They had filed for a divorce along with a case for domestic violence. When the matter was pending before the Supreme Court, the parties were referred to mediation and the parties settled the matter amicably and filed a separate application agreeing for dissolution of marriage by mutual consent invoking the powers under Article 142 of Constitution of India. In accordance of the compromise the husband agreed to pay a sum of Rs ten Lakh to his wife and three lakhs to their daughter. It also settled that he would contribute another one lakh at the time of her marriage of the daughter. Both of them agreed that all the pending cases between the parties shall be withdrawn. The apex court allowed for quashing the cases including the one filed under the Domestic Violence Act after granting them divorce. This case is in continuation of judicial precedent of not hesitating in utilizing the tool of mediation to resolve family disputes. In the case, Mohd Mushtaq Ahmad v. State before the Karnataka High court, matrimonial disputes arose between the couple after the birth of a girl child. The wife filed a divorce petition along with an FIR against the husband under Section 498A IPC. The Karnataka High Court directed the parties to mediation under Section 89 of Civil Procedure Code. The wife then filed for quashing the criminal case against the husband under Section 498A of IPC, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The Court allowed this stating, “The court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice.”[6]

To conclude it may be said that mediation is an excellent way to resolve a number of disputes and domestic violence disputes can also be successfully mediated but a serious change in the criteria for mediation is required. The differentiation of cases between compoundable and non-compoundable is not an appropriate standard for mediation of a dispute. Each case has to be screened individually before it is mediated and any case where there is a serious domestic violence abuse should not be referred for mediation. There is a possibility that in a domestic violence dispute, the victim may not have equal powers of negotiation and thus is easily susceptible to being manipulated to the wishes and benefits of the accused, which if happens, defeats the purpose of the whole exercise. To counter this difficulty, the mediators have to be specially trained for the domestic violence mediations as to maintain a balance of power in order to ensure the victim is not emotionally abused and is at ease to accept a decision in favour of the abuser.

Mediation can be a really fruitful and can ensure that the family structure does not crumble while ensuring that the abuse ends, but only if serious reforms are made as regards to the process.

[1]Act number 43 of 2005.

[2]International Institute for Population Sciences and ICF. 2017, National Family Health Survey (NFHS-4), 2015-16: India. Mumbai: IIPS.

[3]Domestic Violence and Mediation: Concerns and Recommendations, Anita Vestal, May 2007.

[4]Act No. 45 of 1860

[5]Civil Appeal No. 4541 of 2019 (Arising out of Special Leave Petition (Civil) No. 30555 of 2013), https://indiankanoon.org/doc/147273211/.

[6](2015) 3 AIR Kant R 363, https://indiankanoon.org/doc/48924752/.

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