Mediation u/s 11, hma - possible ??
Shantanu Wavhal
(Querist) 08 January 2012
This query is : Resolved
if petition is u/s 11 read with sec. 5 (i) of HMA, for declaration of nullity of marriage,
Can the court send / recommend the dispute for mediation ?
PS : Question sounds childish to myself;
But senior lawyers at my town say YES.
Nadeem Qureshi
(Expert) 08 January 2012
Dear Amit (Shantanu)
According to section 89 (1) (d)
[89. Settlement of disputes outside the Court.
(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-
(a) arbitration;
(b) conciliation
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute had been referred-
(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.
(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;
(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;
(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]
R.Ramachandran
(Expert) 08 January 2012
Dear Mr. Nadeem,
Let us appreciate the loaded and thought provoking question which Mr. Amit has so innocuously posed.
Mr.Amit appears to be quite conscious of the provisions of Section 5(i)of the HMA which clearly makes the marriage of a person already having a living spouse void.
When the provision is crystal clear making the marriage void, instead of straight away adjudicating the petition, whether it is open to the Court to push the parties to mediatiation? In the process, does not the court will become a party to promoting bigamy?
Unlike in the cases that may fall under Section 5(iv) and (v) where still the parties can sit and find out whether there exists any custom, or whether they are truly 'sapindas' etc., to my mind the scope for any mediatiation, that too at the instance of the Court, does not exist.
Probably, being the matter falling under 'family law', the Courts think that it is first left to the mediation cell before taking up for adjudication.
But, the question is very moot. According to my opinion (it does not really matter and need not carry weight) the Court is not correct in sending the parties for mediatiation, especially in a case falling under Section 5(i)of the HMA.
Devajyoti Barman
(Expert) 08 January 2012
Yes I agree with him as well.
Enough discussion has already been made on this aspect before.
Raj Kumar Makkad
(Expert) 08 January 2012
Ramachandran has opined that it should not be sent as specifically section debars such marriages but the question is can a family send such matter to mediation center or not as Amit wants to know.
With fully agreeing with the reply of Ramachandran, I am of the view that it is the desire of the court to direct the parties to go to mediation center for sorting out their problem though it is not desired in view of clarity of section.
prabhakar singh
(Expert) 08 January 2012
A petition u.s 11 read with section 5(i)of HMA to treat the marriage void attracts application of section 17 of the Act as well as section 495 of IPC(non compoundable)hence sending such a case for mediation would of course be called an order without judicial application of mind.
Shantanu Wavhal
(Querist) 08 January 2012
what will mediation result in, if the petitioner husband does not want to reconcile with respondent wife ??
Shantanu Wavhal
(Querist) 08 January 2012
further, how can be a VOID marriage converted to VALID marriage by mediation ??
prabhakar singh
(Expert) 08 January 2012
Mediation if ordered can be challenged.
prabhakar singh
(Expert) 08 January 2012
More over none of parties are legally obliged to abide proposed mediation,and in instant case what proposal may be ,simply illegale.
V R SHROFF
(Expert) 08 January 2012
In case court send them for mediation, What a prudent man should do? Challenge court order, and waste time, or see mediator, for a day & disagree, allowing him to send Negative Report?? THE MATTER ENDS ON THE SPOT.
MATTER END WITH NEGATIVE REPORT.
COURT ORDER MAY BE without judicial application of mind., BUT IT DOES NOT AFFECT PETITIONER AT ALL EXCEPT A DATE.
in case one have citations on sec11c sec 5 & mediators, can bring to the notice of court to avoid medi.
Shantanu Wavhal
(Querist) 08 January 2012
mediation will help nothing but waste time.
I tried to find citations on www.indiankanoon.org - but failed.
Someone pl. put forth citations.
R.Ramachandran
(Expert) 08 January 2012
Dear Mr. Amit,
Having come to a reasonable conclusion about the correct legal position, one should be circumspect.
You say that mediatiation is nothing but a wastage of time. No one can agree more with you.
But in the given situation, what is your alternative.
You will appeal against such a direction.
The appeal court may or may not agree with our view. If it agrees, then the time spent in the appeal may or may not be equal to the time one would have spent in mediatiation itself. If it is less then it is ok, otherwise .. we would have wasted the time any way.
If the appeal court does not agree with our view and sustains the order directing the mediation, we would be spending extra time than what it would have entailed if only we had accepted the mediation route.
Therefore, instead of getting into hair-splitting, and overstretching the issue, in the given circumstance, it would be advisable to go through the mediation, and come out unsettled. Therefore, the court has to adjudicate on the issue.
Shantanu Wavhal
(Querist) 08 January 2012
Yes sir !
I got the concept clear.
I sincerely thank all the experts very much.
Shonee Kapoor
(Expert) 08 January 2012
See Amit,
Mediation would be must. For one, the other party would be contesting and not agreeing to your claims.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
