The sanctity of marriage is not only upheld by the religious texts but also the law. The Indian legal take on marriage holds the relationship to utmost sacred sanctity. It provides for various means of resolutions to prevent its absolute breakdown, seeing that marriage ties two individuals together and their families. Hence, to protect the relationship between two married people, or even in general familial disputes, the law has often encouraged alternative means of dispute resolution as it opens a scope for discussion and settlement among the parties. Mediation is the most famous ADR mechanism employed in the country for such cases. The law regarding the same has been formalised and improvised with the passage of time and the kinds of issues before the court.
Legal Provisions for Matrimonial Mediation
- The Code of Civil Procedure, 1908 makes provisions for reconciliation and suggests alternative dispute resolution mechanisms in cases where the potential of resolution through settlement exists.
- The Hindu Marriage Act, 1955 also has laid down provisions that encourage reconciliation in divorce proceedings before the court is approached for further action. The same is seen in s.23 & s.34 of the Act.
- Section 89 of the Code of Civil Procedure, 1908, further provides for settlement via arbitration, conciliation, mediation & through the Lok Adalats.
Why Mediation? – A comment on the effectiveness of the mechanism vis-à-vis matrimonial disputes.
Matrimonial disputes often entail cases are related to divorce proceedings, where the parties claim irretrievable breakdown of the marriage and choose to move forward with legal separation. While India's legal system is fully equipped to deal with cases that are present in the court of law, it is also recommended that the parties attempt to reconcile or at least try to settle the matter through mediation. Because factors like emotions and social taboo surround the concept and procedure of divorce in India, the parties are encouraged more so because the legal capability of courts does not include the capability of handling the social and emotional aspects of the case.
Mediation allows the parties to identify the issues on their terms in the presence of an unbiased mediator, whose sole job is to attempt dispute resolution without moving to court. How a mediation session is handled depends more on the participation of the mediator rather than the parties, mainly because the mediator holds the power of facilitating the meeting of minds regarding the settlement terms.
The available precedents in the history of marital mediation disputes in our country point fingers at the fact that the process is helpful for the parties as the hassle of court visits and delay are avoided. Still, they are also beneficial as it is a quicker option and helps reduce the burden that is ever-present on the courts of the country.
The legal framework surrounding matrimonial disputes in our country has seen a significant change over the last decade. These changes have popularised mediation in divorce cases because the process of legal separation in itself can be emotionally draining and cause trauma for individuals. Still, this means of resolution and settlement provides them privacy and relief to their grievances in a manner that neither favours one party nor criticising the other.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts made to ensure the accuracy and correctness of the information published, White Code VIA Mediation and Arbitration Centre shall not be responsible for any errors caused due to human error or otherwise.