The courts were set upalmost overnight, without any preparation whatsoever. There was total lack ofinfrastructure 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 nothave any exposure to and experience in dealing with public institutions, arethe worst sufferers. There is a general indifference in the male dominatedsociety towards women who usually end up becoming the victims of theselitigation processes. The judges appointedto the family court do not seem to have any special experience or expertise indealing with family matters, nor any special expertise in settling disputesthrough conciliation, a requirement mentioned in the Act. The provision that womenjudges should be appointed and that the judges should have expertise andexperience in settling family disputes, have stayed only on paper.
Several judicialpronouncements have laid down several precedents in this area of law. This isbasically a law made with reference to judge’s decision. An ex parte decreeof restitution without first trying reconciliation was remanded to trial courtto attempt reconciliation1.Attempts for reconciliation can be made even at the appellate level.2A marriage which is void, however, cannot be rendered valid by reconciliationand therefore the court is not obliged to try it in such cases.3Failure to appear for reconciliation proceedings under this section (s. 23 ofthe Hindu Marriage Act, 1955) was held to be no ground for striking downthe party’s defense in a divorce petition.4 Norcan a court pass a decree on the recommendations of the conciliators orarbitrators.
5The Law Commission, inits report as early as 19736, strongly recommendedthe need for special handling of matters pertaining to marriage anddivorce. The report thus suggested that:71. As far as possible, anintegrated broad-based service to families in trouble should become a part ofthe court system;2. The existing courtstructure should be so organized that one single court should deal with theproblems of preserving the families; and3. The conventionalprocedure dominated by the adversary system may not be appropriate for disputesconcerning the family.In the latest casethat came up in the Supreme Court, K.
Srinivas Rao V D.A. Deepa8were directions were issued to all courts dealing with matrimonial disputes tosettle all matrimonial disputes at first instance through the process ofMediation. The Supreme Court directed Family Courts and Criminal court to referparties to Mediation Centre’s to settle disputes through settlement undermediation.The Supreme Court ofIndia directed Family Courts in view of section 9 of the Family Court Act, 1967to make all possible efforts to settle these matrimonial disputes especially inrelationship to maintenance, child custody, through the process of mediationand to refer parties to mediation centre’s with the consent of the parties. Theapex court observed that the family courts should endeavor the settlement of thedisputes through the process of mediation even after the filing of the failurereports by the counselors.
The Family Courts take the help of Counselors insettling matrimonial disputes during the course of a trial. The Court furtherobserved that family court should set reasonable time-limit for the completionof the mediation process by the mediation centre so as to not cause any furtherdelay in resolution of disputes by the family courts and observed that they mayextend the time limit for mediation proceedings.The Apex Court hasalso in the following directions in the above stated case, to ascertain thatmore marriages do not break up due to the fact that there are mere ego clashes andthat like this case which could have been resolved by a mere direction of thecourt to go to a mediation centre. The Apex Court stated9:(a) In terms of Section 9 of the Family Courts Act, the Family Courtsshall make all efforts to settle the matrimonial disputes through mediation.
Even if the Counselors submit a failure report, the Family Courts shall, withthe consent of the parties, refer the matter to the mediation centre. In such acase, however, the Family Courts shall set a reasonable time limit formediation centers to complete the process of mediation because otherwise theresolution of the disputes by the Family Court may get delayed. In a givencase, if there is good chance of settlement, the Family Court in itsdiscretion, can always extend the time limit.(b) The criminal courts dealing with the complaint under Section 498-A ofthe Indian Penal Code should, at any stage and particularly, before they takeup the complaint for hearing, refer the parties to mediation centre if theyfeel that there exist elements of settlement and both the parties are willing.However, they should take care to see that in this exercise, rigour, purportand efficacy of Section 498-A of the Indian Penal Code is not diluted. Needlessto say that the discretion to grant or not to grant bail is not in any waycurtailed by this direction. It will be for the concerned court to work out themodalities taking into consideration the facts of each case.
(c) All mediation centers shall set up pre-litigation desks/clinics; givethem wide publicity and make efforts to settle matrimonial disputes at pre-litigationstage.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 7003 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.7 Ibid.8 AIR 2013 SC 2176 9 K. Srinivas Rao V D.A.Deepa, AIR 2013 SC 2176