Mediation is a type of dispute resolution recognised as a full-fledged proceeding under Alternative Dispute Resolution. It is one of the processes of settlement where parties commonly discuss their common problem on the common ground and come to the remedy through interactive discussion. Generally, mediation is done by the mediation Centre on the direction of the Court. Mediation is primarily done in respect of compoundable offences; here the main problem arises because the offence of Cruelty under 498 A is identified as a non-compoundable offence under the IPC. This issue has been identified and discussed in various case laws from time to time.
Procedure for Mediation in India
- The courts under the provisions of Section 89 and Order X Rule 1A of Code of Civil Procedure, 1908.
- The Judge referring is known as referral judge. He only examines the facts of the case and considers whether the case is suitable for mediation or not.
- Mediation officer who assists the mediation proceeding is appointed with the mutual consent of the parties.
In Ram Gopal v. State of MP,(1) first time the High Court had made the request to the concerned Law Commission to make the offence under 498A of IPC compoundable so that they can be settled through the tool of mediation and the burden of cases relating to matrimonial and family disputes shall be lowered on the subordinate Court.
In Gian Singh v. State of Punjab and Anr. (2) The High Court stated that certain offences which overwhelmingly and majorly bear civil flavour like those arising out of matrimonial or family dispute; where the offender and victim had settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable. (3) The criminal proceedings may be quashed by the concerned High Court if it feels that the ends of justice shall be defeated by not quashing the same.
In BS Joshi v. State of Haryana & Anr. (4) the High Court stated that complaint under section 498-A of IPC could be quashed by it in the exercise of powers under section 482 of CrPC if parties involved settle their disputes mutually.
LANDMARK JUDGEMENT (K. SRINIVAS RAO v D.A. DEEPA) (5)
- In this Case, at an earlier stage the family quarrels between the wife and mother –in –law turned violent, which then differentiated the relation between both families and also led to the infliction of cruelty by wife on the husband.
- Since Andhra Pradesh by state amendment has made an offence under section 498-A compoundable, therefore, it was referred to mediation.
- Section 9 of Family Courts Act, gives the power to concerned family courts to direct the parties to mediation centres.
- Generally, 498-A is non- compoundable and thus can’t be referred for mediation.
- The Criminal Courts dealing with the complaint under section 498-A of IPC should look at any stage and particularly before they take up the complaint about hearing, refer the parties to mediation centre if:-
- They feel that case consists of elements of the settlement.
- Both the parties should be willing.
- This exercise should not dilute the rigour, purport and efficacy of 498-A.
- Mediation does not curtail discretion to grant bail.
Mediation in domestic violence-related cases attracts a lot of differing opinions. Use of mediation in any dispute has its advantages like confidentiality and flexibility to name a few. Mediation has the potential to save the first interest of the parties involved.
All the above judgements have adopted a pro-mediation approach in domestic violence case. But. At the same time the Indian judiciary has also maintained specific standards to keep the process neutral, fair and fruitful.
-  INSC 635
- (2012) 10 SCC 303
- 2003 (4) SCC 675
- (2013) 5 SCC 226