The courts were set up
almost overnight, without any preparation whatsoever. There was total lack of
infrastructure and basic facilities make the fight for justice a Herculean task. While both men and
women are affected, in every given situation women, who do not
have any exposure to and experience in dealing with public institutions, are
the worst sufferers. There is a general indifference in the male dominated
society towards women who usually end up becoming the victims of these
The judges appointed
to the family court do not seem to have any special experience or expertise in
dealing with family matters, nor any special expertise in settling disputes
through conciliation, a requirement mentioned in the Act. The provision that women
judges should be appointed and that the judges should have expertise and
experience in settling family disputes, have stayed only on paper.
pronouncements have laid down several precedents in this area of law. This is
basically a law made with reference to judge’s decision. An ex parte decree
of restitution without first trying reconciliation was remanded to trial court
to attempt reconciliation1.
Attempts for reconciliation can be made even at the appellate level.2
A marriage which is void, however, cannot be rendered valid by reconciliation
and therefore the court is not obliged to try it in such cases.3
Failure to appear for reconciliation proceedings under this section (s. 23 of
the Hindu Marriage Act, 1955) was held to be no ground for striking down
the party’s defense in a divorce petition.4 Nor
can a court pass a decree on the recommendations of the conciliators or
The Law Commission, in
its report as early as 19736, strongly recommended
the need for special handling of matters pertaining to marriage and
divorce. The report thus suggested that:7
As far as possible, an
integrated broad-based service to families in trouble should become a part of
the court system;
The existing court
structure should be so organized that one single court should deal with the
problems of preserving the families; and
procedure dominated by the adversary system may not be appropriate for disputes
concerning the family.
In the latest case
that came up in the Supreme Court, K.
Srinivas Rao V D.A. Deepa8
were directions were issued to all courts dealing with matrimonial disputes to
settle all matrimonial disputes at first instance through the process of
Mediation. The Supreme Court directed Family Courts and Criminal court to refer
parties to Mediation Centre’s to settle disputes through settlement under
The Supreme Court of
India directed Family Courts in view of section 9 of the Family Court Act, 1967
to make all possible efforts to settle these matrimonial disputes especially in
relationship to maintenance, child custody, through the process of mediation
and to refer parties to mediation centre’s with the consent of the parties. The
apex court observed that the family courts should endeavor the settlement of the
disputes through the process of mediation even after the filing of the failure
reports by the counselors. The Family Courts take the help of Counselors in
settling matrimonial disputes during the course of a trial. The Court further
observed that family court should set reasonable time-limit for the completion
of the mediation process by the mediation centre so as to not cause any further
delay in resolution of disputes by the family courts and observed that they may
extend the time limit for mediation proceedings.
The Apex Court has
also in the following directions in the above stated case, to ascertain that
more marriages do not break up due to the fact that there are mere ego clashes and
that like this case which could have been resolved by a mere direction of the
court to go to a mediation centre. The Apex Court stated9:
(a) In terms of Section 9 of the Family Courts Act, the Family Courts
shall make all efforts to settle the matrimonial disputes through mediation.
Even if the Counselors submit a failure report, the Family Courts shall, with
the consent of the parties, refer the matter to the mediation centre. In such a
case, however, the Family Courts shall set a reasonable time limit for
mediation centers to complete the process of mediation because otherwise the
resolution of the disputes by the Family Court may get delayed. In a given
case, if there is good chance of settlement, the Family Court in its
discretion, can always extend the time limit.
(b) The criminal courts dealing with the complaint under Section 498-A of
the Indian Penal Code should, at any stage and particularly, before they take
up the complaint for hearing, refer the parties to mediation centre if they
feel that there exist elements of settlement and both the parties are willing.
However, they should take care to see that in this exercise, rigour, purport
and efficacy of Section 498-A of the Indian Penal Code is not diluted. Needless
to say that the discretion to grant or not to grant bail is not in any way
curtailed by this direction. It will be for the concerned court to work out the
modalities taking into consideration the facts of each case.
(c) All mediation centers shall set up pre-litigation desks/clinics; give
them wide publicity and make efforts to settle matrimonial disputes at pre-litigation
1 Subhadra Bai v. Harishankar Kachhi, (1989) 1 HLR 613 (MP); Yashodabai v. K.B. Katavkar, AIR 1992 Kant 368.
2 Sushma Kumari v. Om Prakash, AIR 1993 Pat 156; Satyavati Ramdeo v. Ramdeo, (1998) 1 MPLJ 700
3 Tanima Mishra v. Pradeep Patnaik, AIR 1992 Ori 178..
4 Lav Kumar v. Sunita Puri, AIR 1997 P&H 189.
5 Raj Kumar Bansal v. Anjana Kumari, AIR 1995 P&H 19.
6 54th Law Commission Report, 1973 on the Code of Civil Procedure.
8 AIR 2013 SC 2176
9 K. Srinivas Rao V D.A.
Deepa, AIR 2013 SC 2176