Marriage has always been more of a social contract in Indian society, more so than a legal one. The institution of marriage has been viewed as a sacred one in our country for millennia, and now that they are slowly changing, people are sitting up and taking notice. This very sacredness of the union, that is marriage in India, has always been on a very flimsy boat, as men are free to abuse their wives and it is seen as a sign of masculinity by some men too…whereas women are expected to bear the burden of both physical and mental blows, and forgive – because the marriage is holy.
That is not to say only women can be the victims in marriage. Disagreements or something more violent can always arise in a long-term relationship like marriage and there are a lot of factors that can influence matrimonial disputes. While the most common route that most couples go these days in case of unresolvable disputes in litigation leading to divorce, this blog explores the alternative route – resolving matrimonial disagreements through mediation. Read on to find out more about mediation, its advantages, forms, and much more.
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Factors Behind Matrimonial and Family Disputes
There can be many factors that give rise to disputes in a complex and intimate relationship such as a marriage. Unlike other disputes of a contractual nature, these also have the added mix of social, emotional, and personal factors influencing them. There are a huge number of reasons a couple may develop a dispute and blow it all the way to court, but as you might be aware, our courts are already heavily burdened.
Let us discuss some of the possible reasons why a couple may develop a dispute among themselves that can lead all the way to court.
- Recently married couples are more likely to engage in disputes as couples who have been together for a long time are often more tolerant towards each other
- Career stress and personal ambition can often be a reason when both spouses work in different fields and on top of the housework and child-rearing responsibilities, take out their stress on each other
- Children can also be a reason for the development of matrimonial disputes as the financial cost of raising children is only becoming higher and higher at a rate faster than most people can earn
- Household chores can also be a factor as the woman is generally supposed to shoulder all of it in our society
- Finally, in-laws are also a common reason for marital disputes that lead to divorce in India, people do not just wed each other, but the families of their partners as well who are very much prone to interfering in the personal life of the married couple.
Divorce Rules in India
The rules for divorce proceedings in India are based on various Marriage Acts that have been in effect in our country. The Hindu Marriage Act, 1955; the Dissolution of Muslim Marriages Act, 1939; The Indian Divorce Act, 1896; and the Parsi Marriage and Divorce Act, 1936; are all of the acts that govern the rules regarding divorce in our country. While the small print and conditions for filing a divorce may differ slightly from one of these to the other, they are usually based on the same underlying principles discussed below. Some of the valid reasons for filing a divorce are:
- Mental Disorder
- Venereal Disease
- Non-resumption of cohabitation
- Non-restitution of conjugal rights
- Presumed Dead
New Rules for Divorce in India 2021
There have been several new additions to the law of India regarding divorce. From January 2022, the grounds for filing a divorce will also include:
- Reprieve from the 6-month cooling-off period
- Decriminalization of Adultery
- Ban on Triple Talaq
- Only Civil Courts Can Order a Divorce
- Domestic Violence
- Dowry Harassment
- Child Marriage
Mediation is a type of ADR (Alternative Dispute Resolution) tactic that is slowly gaining traction as a valid and more effective alternative to litigation for divorce cases. It involves the use of an impartial third party to act as a bridge between the aggrieved parties and reach a resolution that can be beneficial to both. It works like a counseling session in matrimonial disputes. Couples can either opt for voluntary mediation or it can be mandated by the court.
Process of Mediation
According to Justice Manju Goel, the process of mediation by a mediator or counselor can adopt the following strategies in resolving matrimonial and family disputes:
- Probing facts
- Identifying the underlying cause behind the dispute
- Exploring the possibilities of reconciliation or settling for divorce if nothing works
- Bringing the aggrieved parties to a mutually-acceptable solution
- Shaping the solution in accordance with current laws for legal formatting
Types of Mediation
In India, mediation can either be ordered by the court or voluntary for a divorce case. We can call these two types of mediation pre-litigation and post-litigation. The court might sometimes provide mediation in session, or they may order the couple to seek one.
There are three main types of mediation in practice – facilitative, evaluative and transformative.
Facilitative Mediation is when the mediator facilitates conversation between the two parties (husband and wife) in the same room. It is the most suitable for marriage and divorce cases as it uses the techniques of throwing light on individual points of view, and interests and summarising what is said to present it clearly to the other party.
The other two forms of mediation, evaluative and transformative/narrative are more suitable for business or contractual disputes and aren’t very much used in India so we won’t be discussing them in more detail.
Advantages of Mediation
The various advantages of mediation are discussed below.
- The matters are heard impartially without causing more hurt in the relationship
- Provides speedy resolution compared to litigation in courts
- Flexibility – parties can choose whether to accept the resolution reached by the mediator or go forward with divorce proceedings
- Saves from the emotional and financial burden, for both the couple and their children that would have happened in a court litigation
- Maintains confidentiality and privacy
- The decision reached is mostly a win-win scenario for both parties which may not be the outcome of a divorce hearing in court
While we agree that some marriages cannot be saved and divorce is the best option for them, sometimes all a couple needs to do to resolve their issues is talk it out logically and honestly among themselves. Mediation facilitates just that for matrimonial disputes, offering a neutral third party to negotiate and be used as a sounding to board so the couple can see each other’s points of view without falling into the blame game or something worse that usually happens in normal conversations. Sign up for the services of LEX Solutions today if you want to know more about how mediation works in more detail.
- Is negotiation different from mediation?
- Yes. While mediation may involve negotiation techniques to reach a conclusion, negotiation is a totally different ADR technique.
- Is mediation beneficial for my lawyer as well?
- Yes. It will count toward a case solved, save them time, and get them more clients.
- Are there any provisions in Indian Law for mediation?
- Yes, there are. Section 89 of the Civil Procedure of Code; Sections 23(2) and 23 (3) of the Hindu Marriage Act; Sections 34(3) and 34(4) of the Special Marriage Act; and Family Courts Act all mention the use of mediation to solve disputes.
- Can the court order mediation in a divorce case instead of going forward in the hearing?
- Yes. The court can order mediation for matrimonial disputes under Section 89 of the Civil Procedure Code.
- Can I avail of mediation free of cost?
- No. You need a trained and impartial mediator to solve your issues. That will cost you, though definitely less than what a court case will cost.