READ ORDER | Family Court Need Not Refer Couple For Mediation Mechanically If Marriage Is Irretrievably Broken Down: Allahabad High Court

Indian matrimonial laws are self contradictory where Adultery has been decriminalised, but dead marriages cannot end because “Marriage is Sacrosanct”.

The Allahabad High Court (Lucknow Bench) in its order dated May 27, 2022 observed that the Court is not supposed to act in a mechanical manner, and force the parties to engage in mediation where the marriage has irretrievably broken down.

The Bench of Justice Rakesh Srivastava and Justice Ajai Kumar Srivastava-I further emphasised that it is not compulsory to refer the parties for mediation, where marriage is clearly beyond repair. 

Case:

The Appellant-Wife was married to the Respondent-Husband, according to Hindu rites and rituals at Barabanki in June 2010. Soon after the marriage, differences arose between them to such an extent that the Appellant left her matrimonial home in September 2010 and since then she has been living with her parents.

In May 2013, Wife moved an application under Section 125 CrPC against the Husband before the Family Court demanding maintenance. In October 2018, the Family Court allowed the application moved by the Appellant and directed the Respondent to pay a sum of Rs 5,000 per month to the Appellant towards maintenance with effect from the date of judgment.

Parties Referred To Mediation After 11-Years Separation

In September 2021, the family court referred the matter to the Mediation and Conciliation Centre of this Court to explore the possibility of an amicable settlement between the parties. The mediation was successful. The Appellant and the Respondent agreed to dissolve their marriage.

It was agreed that the Respondent shall pay a sum of Rs 4,25,000 to the Appellant towards full and final settlement of all disputes and the litigation between them whether civil or criminal will terminate. In terms of the settlement arrived at between the parties, the Respondent paid a sum of Rs 3,00,000 to the Appellant and on 13.01.2022 the parties jointly filed an application under section 13-B of the Act before the Family Court for dissolution of their marriage.

The court then fixed a date of 02.07.2022 for second motion and in the meantime the parties were directed to appear before the mediation centre on 14.02.2022.

On 02.02.2022 the Appellant and the Respondent jointly moved an application before the Family Court under Section 13- B(2) of the Act, seeking waiver of six months waiting period to make a motion for the court to pass decree of divorce on the ground that the mediation between the parties had already taken place before the mediation centre of this Court wherein the parties had agreed to dissolve their marriage by mutual consent and, as such, there was no occasion for the second mediation. The said application was rejected by the Family Court. 

Allahabad High Court

The High Court observed that Section 9 of the Family Courts Act casts a duty upon the Family Court to make efforts for settlement. However, while the Family Court can get the matter settled, it is not compulsory to refer the matter to mediation.   

The Court noted that the discretion to waive statutory period of six months is a guided discretion for consideration of the interest of justice where there is no chance of reconciliation and the parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13-B(2) of the Act.

The High Court added that the Family Court is not supposed to act in a mechanical manner, and force the parties to engage in mediation where the marriage has irretrievably broken down.

Allowing the appeal by parties, the Allahabad High Court concluded,

In the case at hand both the parties are well educated. Admittedly, the parties lived together only for three months and after which they have separated on account of irreparable differences. The parties have lived apart for more than eleven years.

The parties have appeared before the Mediation and Conciliation Centre of this Court and have settled their dispute amicably. The parties are unwilling to live together as husband and wife. Even after eleven years of separation the parties still want to go for divorce.

Considering that the parties had already engaged in mediation before the Mediation Centre of this Court, and had failed to reconcile, no purpose would be served by subjecting the parties to the same process again, especially when they have been living apart for several years, and the marriage has irretrievably broken down. No useful purpose would be served in keeping the petition pending except to prolong their agony”

The High Court thus waived off statutory waiting period of six months under Section 13-B(2) of the Act.

VFMI Take:

• Isn’t it a mockery, where well educated wife, who lived together only for three months is entitled to maintenance?
• The lifelong maintenance to wives without divorce under Section 125 CrPC is a tool to bring husbands to agree to one time permanent settlement
• Even after 11-years of separation, family courts are mechanically pushing parties to go for mediation
• Mediation centres are merely forums to ‘settle’ matter with money, post which the wives withdraw all civil and criminal cases against husbands
• There is no justice for Husbands in India, they can only get exit from a dead marriage after they agree to “Settlement”
• Most Husbands lose their prime years of life due to such draconian laws that allows disgruntled wives to massage their egos for decades

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