Some argue that mediation weakens the concept of domestic abuse as a felony. Rather than getting imprisoned, the criminal is allowed to flee unnoticed. When an attacker is allowed to participate in the conciliation process, it should be assumed that there would be no negative consequences about his or her conduct, allowing the abuser to avoid responsibility and the survivor to feel partially responsible.
The idea is that counselling will reduce domestic violence to a minor infraction, allowing the suspect to begin abusing the survivor. While the other side argues that, in the process, as the suspect admits to committing such a felony, the victim's sense of self-denial is reduced due to the mindset itself. Mediation is often victim-centric rather than society-centric so that it prevents prosecuting the criminal purely to cause social dissuasion. As a result, victim-offender settlement by mediation shifts the criminal justice framework by putting the victim at the centre of the operation rather than on the periphery.
LEGISLATION FOR MEDIATION
The Code of Civil Procedure (CPC) was amended in 2002 to incorporate mediation as an Alternative Dispute Resolution (ADR) process, and Section 89 was included. The court can decide if a case should be referred to mediation, arbitration, or judicial settlement by Lok Adalats for an amicable resolution under this section. It’s known as ‘court-ordered mediation’. Whether they refuse to do that, the trial will continue; if they do so satisfactorily, a reply will be submitted to the court, and the matter will be resolved. It’s also classified as pre-litigation mediation, and it refers to parties that request mediation without resorting to court intervention or appeal.
Domestic violence is a criminal offence in India under Section 498A of the Indian Penal Code, and it is dealt with in court according to due process. However, mediation between the sides has often been used to resolve disputes amicably. Section 30 of the Arbitration & Conciliation Act applies to mediation in resolving disputes, while Section 89 of the CPC refers to mediation before a tribunal that deals with ‘political’. Domestic abuse is a non-compoundable offence under Section 498-A of the Indian Penal Code, and no concession is permitted. The trials, on the other hand, have chosen a particular path.
RELEVANT CASE LAWS
While an offence punishable under Section 498—Indian Penal Code is not compoundable, the Supreme Court ruled in K. Srinivas Rao v. D.A. Deepa that “while an offence punishable under Section 498—Indian Penal Code is not compoundable, in situations where the parties are willing and when the trial court seems to have elements of the resolution, the parties should be guided to discuss the possibilities of settlement via mediation.”
The High Court of Kerala also held in T. Vineed v. Manju S. Nair that it was the court’s duty to the public to seek alternate dispute settlement diligently. It is not just the court's statutory obligation to assign disputes to mediation, to put it another way. This imposed liability presents the parties with a variety of options for seeking justice. As a result, there is a lot of scrutiny on the lower and higher courts.
In Praveen Singh Ramakant Bhadauriya vs Neelam Praveen Singh Bhadauriya, the Supreme Court permitted the parties to quash proceedings under the Domestic Violence Act after granting a divorce.
This demonstrates that the Indian judiciary supports mediation as a means of resolving domestic abuse problems.
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.