What is Matrimonial Mediation?

What is Matrimonial Mediation?  What are the outcome of Matrimonial Mediation .  Role of Stakeholders?  What are the benefits of Matrimonial Mediation?

Author: Shreya Pandey 

“It is not a lack of love, but a lack of friendship that makes unhappy marriages.”

― Friedrich Nietzsche

What is marital conflict? 

Marriage is a sacred relationship between two people. It is considered a relationship for seven lives between spouses. This sacred tie is nurtured and grows due to the equal contribution of spouses. When this tie gets affected for any reason it leads to conflict in marital life ultimately leading to divorce.

Conflict or dispute arising between the couples in the marriage due to the things and events associated with a nuptial tie is known as Marital conflict

In every type of relationship conflict is inevitable whether it is in marriage or another but overcoming this makes a relationship healthy. There is no conflict and dispute which cannot be resolved by putting in some effort, love, and understanding. Adjustment and compromises make it perfect while deviating from it disrupts the relationship.

What causes marital conflict?

There are various causes of marital conflict. 

Some are mentioned below:

i) Domestic Violence: It is a series of habits involving violent and undesirable behavior, whether physically or mentally, by any member of the family against the other. This series of acts creates tensions between the spouses leading to conflict.

ii) Financial issues: Another important reason behind conflict in marriage is money. The crisis involving money and incompetency to meet the demand leads to such conflict. More often when one spouse is a saver while the other is a spendthrift, it is a high chance of marital conflict.

iii) Infidelity: Trust and devotion by one partner to the other is a stronghold for the marriage. But, if one partner deviates from it, it leads to conflict. If any one partner in a marriage has a relationship outside marriage this leads to the breaking of a nuptial tie.

iv) Lack of Communication: In nowadays busy schedule to maintain social and professional life, spouses gets less time to spend with each other and to discuss and share the things related to their own personal life and related to each other. This lack of communication creates differences between them which ultimately leads to the divorce.

v) Lack of commitment: Many times it is seen that any one or both spouses lack the commitment to their marriage. It may be due to various reasons i.e. either marriage is a forceful one, done under the influence or the force of guardians, relationship outside marriage, etc.

vi) Control over others: If one spouse tries to excessively control others unnecessarily voiding his or her own choices and privacy this leads to disruption in marital life leading to conflict.

What is Matrimonial Mediation?  What are the outcome of Matrimonial Mediation?  Role of Stakeholders?  What are the benefits of Matrimonial Mediation?

When marital conflict converts into 

matrimonial dispute?

“We usually learn from debates that we seldom learn from debates.”― Mokokoma Mokhonoana              

Conflict in marriage is inevitable. None of the spouses can ignore and run away from this basic fact. It cannot be avoided that when two utensils are kept together they cannot make noise. However, to make it go through smoothly makes a relationship perfect. Investment of time and devotion is necessary for a relationship.

When ego starts dominating in a relationship this conflict converts into a major dispute. When in marriage none of the spouse is ready to understand, compromise, and adjusts this lead to matrimonial dispute.

How Matrimonial Mediation helps in resolving matrimonial disputes? 

Outcomes of Matrimonial Mediation

When a party reaches court with their matrimonial dispute, the court first tries to settle it rather than going directly into trial until and unless the cause of the matrimonial dispute is arisen due to violence. Court refers the matter to mediation where the mediator does marriage counseling to resolve the it.

Marriagecounseling is a type of therapy between spouses where the court helps them to overcome the problems which have to develop between them and then resolve the conflict leading to improving their relationship. The mediator will help the couple to look into the reason which is deteriorating their relationship and what is lacking between spouses and finally will help them to come down to a common point to settle their dispute.

I. Reconciliation to live together through Counseling

In the cases of matrimonial disputes, the court through the Alternative Dispute  Resolution (ADR) mechanism first tries to reconcile the matter between the parties or spouses. Divorce is only the last resort. Through the reconciliation process, they try to address various specific issues, such as:

i) problems relating to the communication;

ii) Difficulties relating to finance;

iii) Conflicts and disputes relating to child upbringing;

iv) infidelity;

v) other family issues; etc.

The main purpose to counter these issues is to make couples reconsider the problems between them and to make them live together all again.

II. Reconciliation to live separately through Counseling

When marriage is broken irretrievably then the ultimate solution for the peace and happiness of the spouses and their children (if any) is to let them part away and go in their own direction.

When the mediator finds that there is no single connection to the joint so as to make spouses live together, he will try to reconcile the dispute between them so that the couples can live separately without fighting in court. The paramount of this reconciliation proceeding is to settle disputes calmly without the interference of the court.

The process is highly functional as marriage conflict include the association of two families, friend, and children.

III.Reconciliation for mutual divorce through Divorce Mediation

Reconciliation for mutual divorce through divorce mediation is immensely utilized in cases where one party files criminal or civil cases against the other. On average more the 1350 cases are pending in front of each judge, and he is able to clear nearly 45 cases per month. On average civil cases take 4 to 6 years excluding appeal time which takes extra time. 

These extra years come as a hard time affecting emotionally and mentally an individual and the person associated with it. The same is with civil cases which affect a person monetarily, emotionally, physically, etc. All the court cases affect a person's individual life badly remarking and tagging him or her as a criminal. Societal trial affects his, family, and others' reputation.

In such a case, mutual divorce is a saver as it settles the dispute without consuming extra time and money. An appointed mediator directly works on the issues as divorce was mutually taken by spouses. 

A mediator plays a very crucial role in respect of settling other affiliated things for example settling of alimony, children custody, etc.

What is Matrimonial Mediation?  What are the outcome of Matrimonial Mediation?  Role of Stakeholders?  What are the benefits of Matrimonial Mediation?

Roles of Police Authority to resolve the  

matrimonial dispute on receiving 

complaints under 498A

Section 498A is attracted when a woman is subjected to cruelty by her husband and his family. The section explains that if a husband and his family do an act that is subjected to cruelty against the wife then they are punishable for a term up to three years and they are also liable to a fine.

This Section very well explains the term "cruelty", which means

a) any conduct has done willfully which is of nature ultimately convincing the woman to commit suicide or may cause grave injury to her, or put her life, limb, and health to danger, whether mentally or physically.

b) harassment to woman where harassment is of such a nature that it coerces the wife or person related to her to meet any demand, which is unlawful, relating to any property or valuable security.

This section was added to IPC by the Criminal Law (Second Amendment) Act, 1983 (46 of 1983). 

I. Follow the directions of the Supreme court relating to the preliminary inquiry before registration of FIR.

Supreme Court has laid various directions which are required to be followed while registering an FIR. These directions are as follows:

 i) It becomes mandatory to register an FIR under Section 154 of the Code of Criminal Procedure, 1973, when the information received discloses that the offense commenced is of cognizable nature and there is no requirement of preliminary inquiry as it is not permissible in such situation.

ii) where the information does not disclose the happening of the cognizable offense but makes it necessary for an inquiry, then preliminary inquiry shall be conducted to ascertain the nature of the offense commenced.

iii) If inquiry, so done, discloses that the offense commenced is of cognizable nature, then FIR is necessary to register. If in case, a preliminary inquiry ends leading to the closing of the complaint then a copy relating to the closure of such inquiry will be given to the first informant within a week. A copy shall disclose the reasons, in brief, for closure of the complaint and not proceeding further.

iv) No police officer can refuse to file or register an FIR if it is found that a cognizable offense had happened. If he refuses to do so, then, action must be taken against him for not registering FIR.

v) Preliminary inquiry is not done to find the accuracy of offense through information but only to ascertain whether it is a cognizable offense or not.

vi) Whether preliminary inquiry will be conducted or not will solely depend on the facts and circumstances of the cases. Cases in which preliminary inquiry shall be conducted are:

          Matrimonial/ Family Dispute

          Commercial offense

          cases relating to medical negligence

          cases relating to corruption, etc.

ArneshKumar v. State of Bihar (2014), 

this case is a landmark judgment against the misuse of Section 498A of the Indian Penal Code, 1860, and various dowry provisions. Supreme Court had laid down guidelines, to be followed during arrest, while giving this judgment.

Supreme Court observed that the main purpose of Section 498A was to deal with the cases of cruelty and harassment against women by their husband and their family. 

Due to the nature of Section 498A i.e. cognizable and non-bailable, it becomes a weapon in the hands of wives to use it as a weapon against the husband and his family/relative. 

This Section did not spare even the old grandfather or grandmother of the husband along with relatives who live abroad. 

The guidelines of this case ask the police officer to go through the things and determine whether the arrest of the husband and his relatives is necessary under Section-41 of the Code of Criminal Procedure, 1973. 

Guidelines to be followed:

1. State Government was advised to properly issue instructions for their police officers. They were asked not to arrest a person automatically if a case under Section 498A of IPC came to their notice. The arrest will be held only when the parameter provided under Section 41 of CrPC gets attracted.

2. Checklist which, having all the specified clauses provided under Section 41 (1)(b)(ii), shall be provided to police officers.

3. It shall be the duty of police officers to forward the checklist which will be duly filed and furnished along with the reason which necessitated the arrest of the person while producing him before the magistrate.

4. The magistrate shall order further detention only after getting satisfied with the report furnished by the police officer and the reasons stated.

5. If a person is not arrested then it is necessary that the police officer shall forward the copy of the decision to the magistrate within two weeks from the date of institution of the case.

What is Matrimonial Mediation?  What are the outcome of Matrimonial Mediation?  Role of Stakeholders?  What are the benefits of Matrimonial Mediation?

Roles of Advocates in guiding the client's husband/wife.

I. For checking the route of matrimonial mediation/counseling before instead of filing RCR section 9 HMA and DivorceSection 13(i) HMA.

Section 9 of the Hindu Marriage Act, 1955, talks about restitution of conjugal Rights And Section 13(1) of the Act lay down grounds for divorce. 

Whenever a party either husband or wife comes as an advocate it is a foremost duty of an advocate to check for an alternative. The advocate may act as a first counselor between spouses to resolve the matrimonial dispute.

Many of such disputes are merely clashes of ideology and ego which can be resolved by counseling by any person. Advocates may also do the same without directly going on for filing the case.

Roles of Judges in resolving matrimonial dispute/conflict instead of initiating the litigations.

Timely sending the matters for matrimonial mediation/counseling

With time and due to various guidelines of the Supreme Court, as approved in 2013, criminal cases especially cases relating to Section 498A are usually sent for mediation.

Judges play a vital role in approving it as judges are the ones who refer the cases for mediation instead of going to the trial.

In the case of Mohd. Mushtaq Ahmad v. State (2015), the wife filed for a divorce petition and an FIR against her husband under Section 498-A of the Indian Penal Code. The disputes between both the couple began after the birth of a girl child. 

The Karnataka High Court referred the couple for mediation under Section 89 Code of civil Procedure, 1908. In the mediation proceeding, the dispute between them has settled amicably after which the wife quashed the FIR.

Karnataka High Court reiterated that “the court can quash the FIR and the Criminal Proceedings while exercising its inherent powers in order to meet the ends of justice”.

In GurudathK. v. State of Karnataka (2014), the court observed that "if the dispute is with respect to the offense which is non-compoundable and in any case, it relate to matrimonial disputes and the Court is satisfied that the parties to the dispute can settle it amicably then Section 320 Code of CriminalProcedure, 1975 would not bar the power of the court to quash an FIR or criminal complaint in relation to that offense.” 

What is Matrimonial Mediation?  What are the outcome of Matrimonial Mediation?  Role of Stakeholders?  What are the benefits of Matrimonial Mediation?

Benefits of outcomes of Matrimonial Mediation

Mediation is always beneficial for parties to the dispute. When it came to Matrimonial mediation it is profoundly instrumental. Mediation has many benefits whether it is related to time-consuming or less cost-effective. 

It covers a wide area helping the parties throughout their procedure. When it comes to the outcome of mediation in matrimonial disputes the success rate is altogether high. Every party involved or interconnected with the proceeding gets the benefit of the Alternative Dispute Resolution (ADR) Mechanism.

I. Benefits for Husbands

Spouses are the one who gets the direct benefit of this mechanism. As spouses are the one who was suffering a lot in the matrimonial proceeding, procedures such as mediation are rescuer for them. In almost all matrimonial cases, the order was issued for alimony to the wife. In mediation, it is very much convenient that the amount of alimony is set after a brief discussion with the parties.

The amount of alimony is never set or imposed forcefully upon the husband or at the discretion of the wife. Especially, in cases where other sections were imposed, whether criminal or civil, settling of the matrimonial dispute i.e. divorce is always favorable.

II. Benefits for a wife.

Respect to a wife who loses monetary dependency due to a matrimonial dispute in major cases finds it hard to survive the long-running disputes in the court. For her spending money on litigation is big deal. Plus mental and emotional stress and exhaustion due to long-running cases affect the wife badly. 

If in case, matrimonial dispute includes or is due to domestic violence which hereby leads to the divorce then the process is a hard time for a wife. In all such cases, mediation proceeding is very advantageous

III. Benefits for Children involved(if any)

The person who affects the most due to matrimonial disputes and conflicts are children born out of these marriages. All the circumstances created in their surroundings due to these disputes put them under psychological and mental pressure. Matrimonial disputes come up with a discussion on child custody.

For them, it is hard to bear the pain of leaving a parent. Such children usually start suffering from:

i) Depression;

ii) Anxiety;

iii) Fear of getting close to someone other;

iv) Insecurity;

v) Disorders in mood; etc.

What is Matrimonial Mediation?  What are the outcome of Matrimonial Mediation?  Role of Stakeholders?  What are the benefits of Matrimonial Mediation?

Mediation always comes in the best interest of a child. 

Such benefits include;

a)mediation promotes an affable relationship. With this, a child lives in a happy environment whether it includes his parents living together or separately. It is very important that a child is nurtured in a healthy environment and parents' bad marriage cannot provide him such an environment.

b) Mediation procedure includes and allows privacy of the family. As the whole proceedings promote the privacy of individuals it is a high chance that the procedure and trial will affect the child psychologically.

c) Mediation proceedings focus on the best interest of children. If it is in the interest of the child that the parents should not live together then the court will go in favor of the child and grant the divorce to the parents.