This article has been written by Ms.Kirti Patil who is preparing for judicial examination.
*Introduction:*
Divorce, which is a legal dissolution of marriage, is a complex topic that ties together many facets of Indian family law. Through an examination of the legal bases, alimony, child custody, mediation, and other laws that influence the divorce landscape in the nation, this article seeks to provide a comprehensive analysis of divorce cases.
Describe Mediation.
The process of mediating a dispute between two or more parties by including a third impartial person is known as alternative dispute resolution, or mediation. This third person facilitates a mutually agreed Upon resolution to the conflict between the parties.Under alternative conflict resolution, the mediation procedure is described.ADR offers conciliation, arbitration, mediation, and negotiation as well as other techniques to resolve disputes.“Justice is maintained by the spirit of the law, not by its formal structure.” Earl Warren, LJ.
ADR Is Needed in India:
The statement read as follows: “The Chief Justices and Ministers believed that many issues might be resolved through other channels including arbitration, mediation, and negotiation, and that courts were not equipped to handle the full weight of the legal system. The importance of using alternative dispute resolution, which offered procedural flexibility, saved significant time and money, and spared parties from the stress of a traditional trial, was underlined. In India, there has been a major push toward Alternative Dispute Resolution systems because of the incredibly sluggish court process. The National Legal Services Authority Act of 1987 established the Lok Adalat system, which is distinctly Indian in its approach to alternative dispute resolution (ADR), although the Arbitration and Conciliation Act of 1996 is a pretty normal western method.1
*Role of Mediation:*
The practice of promoting mediation as an alternate method of resolving disputes in divorce cases has changed in recent years.
- *The Mediation Process under the Code of Civil Procedure:*
– Section 89 empowers the court to refer parties to mediation, promoting amicable settlements.
- *Success Stories:*
– The case of “Ahuja v. Ahuja” (2020) exemplifies the court’s inclination towards amicable settlements, encouraging parties to explore mediation before resorting to litigation.
Divorce Mediation: What Is It?
In divorce mediation, a qualified, impartial mediator meets with you and your spouse to go over the concerns and find a solution. Although informal office settings are common for mediation sessions, you may also be able to conduct your mediation online.
In a divorce mediation, who is a mediator?
The mediator does not provide legal counsel or make decisions during the divorce process. Through mediation, a third party merely assists the two spouses in determining the most effective course of action to resolve their conflict. The mediator has an obligation to keep the previous information private. He is not allowed to disclose to anyone the specifics of the case. Additionally, since there is no documentation of the mediation proceedings, there is greater trust in using mediation to resolve divorce disputes.
The benefits of mediation include:
Mediation offers a number of benefits that can be utilized in real estate, labor negotiations, divorces, and other disputes where a court case may not be necessary. Cost, secrecy, control, reciprocity, compliance, and support are a few of them.
- Price. A trial is far more expensive than mediation.
- Reaching a settlement. The majority of mediations result in the settlement of every divorce issue.
- Propriety. The content of your mediation sessions is kept private and confidential.
- Liberty. Instead of having a solution imposed upon you based on inflexible and impersonal legal principles, mediation enables you to reach a resolution based on your own ideas of what is fair in your particular situation.
- Guidance is still accessible.
- competence. The process is in your and your spouse’s hands, not the court’s.
- Interaction. By fostering communication between you and your spouse, the mediation process can help you prevent future arguments.2
Divorce Legal Grounds in India:-
The Hindu Marriage Act of 1955, the Muslim Personal Law (Shariat) Application Act of 1937, the Indian Divorce Act of 1869, and the Special Marriage Act of 1954 are among the statutes that form the legal basis of divorce in India. Every statute outlines particular grounds for filing for divorce.
- *Hindu Marriage Act, 1955:* –
Among the reasons for divorce are adultery, cruelty, desertion, conversion to another religion, insanity, leprosy, venereal disease, and a spouse who has been absent for a continuous period of seven years.
- *Muslim Personal Law (Shariat) Application Act, 1937:*
Under Islamic law, divorce can be initiated by a husband through Talaq or by mutual consent. The wife can seek divorce on grounds of cruelty, desertion, or non-maintenance.
- *Indian Divorce Act, 1869:*
Applicable to Christians, this act provides for divorce on grounds such as adultery, cruelty, and desertion. The court also considers conversion to another religion as a valid ground.
- *Special Marriage Act, 1954:*
This act governs marriages where one or both parties are not Hindus, Muslims, Christians, or Parsis. It allows divorce on grounds like adultery, cruelty, desertion, mental disorder, and venereal disease.
*Alimony and Maintenance Laws:*
A fair and just distribution of resources is ensured by a number of provisions that govern the financial implications of divorce.
- *Section 25 of the Hindu Marriage Act, 1955:*
– Empowers the court to award permanent alimony and maintenance during or after divorce proceedings.
- *Muslim Personal Law:*
– The quantum of maintenance is determined based on the husband’s financial capacity and the needs of the wife and children. The wife is entitled to maintenance during the iddat period after divorce.
- *Section 36 of the Special Marriage Act, 1954:*
– Addresses the issue of alimony and maintenance, allowing the court to pass appropriate orders based on the financial positions of both parties.
*Child Custody Laws:*
Child custody disputes are resolved in accordance with the welfare principle, which seeks to safeguard the child’s best interests.
- *Guardians and Wards Act, 1890:*
– Governs child custody matters, allowing the court to appoint a guardian based on the welfare of the child.
- *Section 26 of the Hindu Marriage Act, 1955:*
– Courts consider the child’s welfare as the paramount consideration when determining custody arrangements.
- *Muslim Personal Law:*
– Decisions are made in accordance with the child’s welfare, considering factors such as the mother’s ability to provide proper upbringing.
Deciding on Between Mediation and Conventional Divorce
Even with all of its benefits, mediation might not be the best option for every couple divorcing. Substance abuse and domestic violence-troubled relationships are two situations where mediation is less successful. The spouse in the submissive role might find it difficult to express their interests in mediation when one of them routinely intimidates or dominates the other.
Additionally, when their marriage fails, some partners become so resentful of one another that they are unable to communicate openly with one another. Given that openness and respect are fundamental to the mediation process, this could render it less successful.
In cases where one partner has intentionally lied or misled the other, mediation may not be able to establish the necessary level of trust. If any of these apply to you, you might prefer to use a more traditional divorce procedure or work with a mediator who is knowledgeable about these matters in order to ensure that your rights are sufficiently safeguarded.
The following are the ultimate advantages and benefits that are purported to arise from divorce mediation:
- All parties are free to voice their concerns.
- A third party offers support to all involved parties.
- There is never any opposition to the strategy.
- The parties are in control of the result.
- There is a significant price reduction.
- No one’s private is violated.
- A settlement that complies with the wishes of the family
- Steer clear of legal action.
The mediator will not be able to provide legal advice, but they will be able to:
- Listen to both of your points of view without taking sides;
- Assist in fostering a peaceful environment so that you can come to a mutually agreeable decision; and
- Offer helpful suggestions for next steps.
During mediation, everything you say is kept private.
When the mediation is over
The “memorandum of understanding,” which is a written record of your agreements, will be created by your mediator. You will each receive a copy.
It’s a good idea to take your memorandum of understanding to a solicitor and ask them to convert it into a “consent order” if your agreement involves money or property. This implies that you have the right to sue your ex-partner for breaking a contract.
Once you’ve begun the process of divorcing or ending your civil partnership, you can apply for a consent order. A judge must approve it in court, which will cost £53. The costs of your attorney will also be borne by you.3
Enforcing and Changing Mediation-Resulted Divorce Settlement Agreements
It’s critical to make sure a divorce settlement agreement obtained through mediation is enforceable and legally binding. Here’s how to uphold and alter an Indian mediation-achieved divorce settlement agreement:
Enforcing the terms of the divorce settlement:
Court filing: Following mediation, the parties have to submit the divorce settlement agreement to the court.
Court approval: The agreement will be examined by the court to make sure it is fair and equitable and complies with the law. The agreement will become enforceable and legally binding if the court grants its approval.
Breach of the agreement: The other party may file a lawsuit to enforce the terms of the agreement if one party violates them. This could entail filing a lawsuit for damages or requesting a court order requiring compliance.
Changing A Divorce Settlement Agreement:
- Consent of Both Parties: Any changes to a divorce settlement agreement that was reached through mediation require the consent of both parties.
- Mediation: To settle the specifics of the modification, the parties may decide to use mediation.
- Filing with the court: Following their agreement on the changes, the parties need to submit the updated agreement to the judge.
Court approval:
It’s crucial to remember that changing a divorce settlement agreement is not always simple, particularly if the parties are at odds over the suggested adjustments.
Sometimes, in order to work through these problems and come to a mutually agreeable solution, it might be necessary to enlist the aid of a mediator or attorney.4
*Challenges and Reform:*
Despite the legal framework, challenges persist, prompting the need for ongoing reform.
- *Procedural Bottlenecks:*
– The case of “Malhotra v. Malhotra” (2022) emphasized the need for expeditious resolution to mitigate the emotional toll on parties involved.
- *Stigma Surrounding Divorce:*
– Societal perceptions and stigmas surrounding divorce continue to impact the legal process, necessitating awareness campaigns and education.
Landmark Cases:-
Srinivas Rao v. D.A. Deepa
In this case, the Supreme Court ruled that mediation is required before a divorce can be finalized. When a case arises under Section 489A of the IPC, the Supreme Court instructs the criminal courts not to deal with the complaint unless it is referred to the mediation centers. However, in a few cases where the cruelty is particularly severe and dangerous, the criminal courts may take the case without referring it to the mediation centers. Furthermore, it has been decided that all mediation centers shall establish their litigation clinics to address marriage problems without having to go to court.
S Krishna Murthy vs. B.S Nagaraj and Ors
In this case, Justice Markanday Katju held that lawyers should advise their clients for mediation, especially where the dispute is family in nature. Otherwise, the litigation goes on for years and decades which is detrimental to both parties.
- Rao vs. L.H.V. Prasad
In this case, the court held that marriage is a child-centric heterosexual institution in our society. However, if marriage as a unit breaks down, the adjustments of various relations are required rupturing the usual structure and peace of the family. So, the family laws and courts mostly encourage matrimonial disputes for reconciliation and settlement by amicable agreement instead of litigation.
Salem Bar Association v. Union of India
In this matter, Writ Petitions were filed challenging the Amendments made to the Code of Civil Procedure by way of Amendment 46 of 1999 and Amendment 22 of 2002. Amongst other amendments, the attention of the Hon’ble Supreme Court was drawn to Section 89 of the Code of Civil Procedure.
The Hon’ble Supreme Court observed that the provision of Section 89 of the Code of Civil Procedure has been inserted to ensure that all the cases which are filed in the courts need not necessarily be decided by the courts. The Hon’ble Supreme Court opined the need to promote Alternate Dispute Resolution. It, therefore, considered Section 89 to be a welcome step. It was therefore suggested by the Hon’ble Supreme Court, that a Committee be constituted so as to ensure that the amendments made to the Code of Civil Procedure become effective and result in the quicker dispensation of justice.
Conclusion:-
The quickest and easiest way to resolve the problems that arise during a divorce is through divorce mediation. Nobody has more time in the modern world to take their dispute to court in order to get it resolved. By selecting a mediator online, the parties to a divorce can resolve their differences through mediation.
The court is encouraging more couples to use the mediation process to resolve their divorce because of the overwhelming workload on the courts.
Reference:-
- https://legalstudymaterial.com/whatisdivorcemediationinindia/#Who_is_a_mediator_in_divorce_mediation
- AIR 2013 SC 2176
- S.L.P. Civil) No(s).2896 OF 2010
- Special Leave Petition (Crl.) No. 3164 of 1999
- (2003) 1 SCC 49.