The Supreme Court has widened the scope of the Protection of Women from Domestic Violence Act, 2005 (Hiral O Harsora and Ors versus Kusum Narottamdas Harsona and Ors, 2016) to give the Act a gender-neutral flavour. For those who have closely monitored the implementation of the decade-old legislation, however, the decision exposes women and children to the threat of prosecution and is far from the reality of domestic violence. This is not the first time the judicial narrative on gender justice has missed the point, despite being well-intentioned. In the interest of preserving the institution of marriage, the SC has, for years, promoted the settlement of matrimonial disputes through mediation, even in cases where parties were subject to abuse and cruelty.
Mediation as a form of alternate dispute resolution (ADR) is gaining currency, especially through mediation centres. While mediation in general continues to be promoted, ‘family law’ cases are considered to be well-suited to this form of ADR. This comes as a surprise, since mediation is helpful in disputes where parties have continuing relationships, a category to which matrimonial disputes lend themselves easily. This was echoed by the Supreme Court in K Srinivas Rao versus DA Deepa. This was also borne out by data collected by the Vidhi Centre for Legal Policy for an ongoing research project on court-annexed mediation. Data from the Bangalore Mediation Centre reveals that over 70% of the cases referred for mediation between 2011 and 2015 were matrimonial disputes, including cases relating to domestic violence and cruelty. Interviews with mediators and administrators reinforce this view.
The emphasis on ‘family law’ cases being well-suited for mediation, to the extent that many believe it should be made mandatory in such cases, is problematic. Matrimonial contexts and disputes are deeply gendered spaces and can be sites of grave power imbalances. Any attempt to mediate between spouses warrants addressing this power imbalance before the parties can look to settle their dispute as equals. This peculiar nature of matrimonial mediations, though widely acknowledged in global literature, has received almost no attention in the Indian context.
The situation is exacerbated by the callous approach taken towards matrimonial disputes by the judiciary. In its 2013 decision, the SC encouraged mediation in cases under Section 498-A of the IPC, 1860, which stipulates punishment for a husband or his relatives for subjecting the wife to cruelty. This offence is not compoundable, unlike cases where a compromise may be struck, and an offender can look to avoid trial. Even though the law treats it as a serious offence, the SC gave the go-ahead for meditation, with a few inadequate safeguards. (The provision for court-referred ADR mechanisms is contained in the CPC, and not in the Code of Criminal Procedure, 1973, thus making the legal basis for referring criminal cases for mediation questionable to begin with.) This is not the first time criminal offences in matrimonial cases have been seen as less grave than other offences. For years, the SC has upheld quashing of FIRs in cases relating to non-compoundable criminal offences in matrimonial disputes, because certain offences (such as offences in a matrimonial relationship) “overwhelmingly and predominantly bear civil flavour,” since the wrong is basically to the victim (Gian Singh versus State of Punjab and Anr, 2012).
Scholars have been wary of relying on the legal system to address feminist concerns, and the SC’s position on these cases merely validates this scepticism. The SC’s approach, classifying some offences as more serious than others, combines hints of judicial overreach with the regressive mindset that views crimes in a matrimonial relationship as ‘family matters’ suitable for settlement (reminiscent of the public/private divide that liberal feminists have long sought to debunk). But the criminalisation of gendered evils like domestic violence and cruelty in law by Parliament is itself an acknowledgement that the personal is political. In this context, the judicial insistence on settlement in matrimonial cases without adequate safeguards is yet another example of the system reinforcing the very injustices it seeks to redress.
As a corrective measure, we must first acknowledge that gender needs a place in the mediation policy in India. There is a clear danger in making a woman sit across the table from her abusive husband in a case for child custody. Ignoring these dangers makes mediation yet another site for a peculiar kind of gendered violence. Such acknowledgement is a prerequisite to establish safeguards to ensure that the quality of justice is not compromised. Methods such as screening cases for domestic violence, higher standards and specialised training requirements for mediators of such disputes, etc, are some of the safeguards commonly adopted in other jurisdictions. Such measures have successfully allayed concerns relating to quality of justice in such cases, and we must contemplate the benefits of incorporating similar safeguards in the mediation framework in India.
The reckless push for mediation in India is an example of the state getting caught between divergent pulls, trying to balance competing interests. There is the undisputable obligation towards married women’s rights on one hand, and the need to protect the sacrosanct institution of marriage on the other. It is about time, though, for the state to get its balancing act right, because although mediation is an expeditious alternative in dispensing justice, whom is this justice really for?
The author is an associate fellow, Vidhi Centre for Legal Policy. Views are personal