Trial Court Cannot Force Parties To Undergo Mediation In Mutual Consent Divorce Cases: Calcutta High Court

The Calcutta High Court has held that a court cannot dismiss a petition for divorce by mutual consent merely because the parties did not participate in mediation, observing that mediation is founded on the consent of both parties and cannot be "forcibly thrust upon them."A Division Bench of Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya set aside an order of the Additional District Judge, Sealdah, which had dismissed a joint application for divorce by mutual consent under Section 28 of the Special Marriage Act, 1954 on the ground that the parties failed to comply with an earlier direction to appear before a mediator."The consent of both parties to go for mediation is a sine qua non for referring the matter to mediation and the parties cannot be forced against their Will to go to mediation," the Bench held.The Court strongly criticised the approach adopted by the trial court, describing it as being "completely de hors the law."Case BackgroundThe appellant challenged an order dated January 15, 2026, whereby the trial court dismissed the matrimonial suit arising out of a joint petition for divorce by mutual consent. The dismissal was solely on the ground that the parties had not complied with an earlier direction requiring them to participate in mediation.Before the High Court, counsel for both the appellant and the respondent—who were joint applicants before the trial court—submitted that mediation depends entirely upon the willingness of the parties. Since both parties had already decided to dissolve their marriage by mutual consent, their failure to appear before the mediator could not invalidate their application.The trial court had recorded that despite an order directing the parties to appear before the mediator, they failed to do so. It further observed that the parties' counsel did not inform the court that mediation had not taken place and characterised the omission as a deliberate violation of the court's order.The trial judge had also remarked that the conduct of the parties and their counsel was "not at all praiseworthy" and stated that he was not inclined to show any "soft attitude" towards them before dismissing the matrimonial suit.The High Court found this reasoning legally unsustainable.Court's FindingsThe Division Bench explained that the statutory basis for referring disputes to mediation is Section 89 of the Code of Civil Procedure, which also applies to matrimonial proceedings. However, a reference to mediation can only be made where the parties agree to such a course.The Court observed that while courts dealing with contested matrimonial disputes should explore the possibility of reconciliation, the same principle cannot be mechanically applied to proceedings for divorce by mutual consent."In an application for divorce by mutual consent, there is little or no scope for adjudicating the disputes between the parties on merits. If the parties do not agree, there is no scope of reconciliation or mediation at all and a mandatory recourse to mediation cannot be forcibly thrust upon them by the court," the Bench observed.Holding that the trial court had proceeded on a "palpable misconception of law," the High Court said the view that parties were under a mandatory obligation to undergo mediation was "absolutely perverse and contrary to basic legal tenets."Accordingly, the Division Bench allowed the appeal by consent, set aside the impugned judgment and decree dated January 15, 2026, and remanded the parties' application under Section 28 of the Special Marriage Act to the trial court for fresh disposal in accordance with law within the statutory timeline.Case: Danish Karim v. Ranjana Chowdhury, F.A.T. 22 of 2026, decided on July 20, 2026.Click here to read order

Trial Court Cannot Force Parties To Undergo Mediation In Mutual Consent Divorce Cases: Calcutta High Court

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Trial Court Cannot Force Parties To Undergo Mediation In Mutual Consent Divorce Cases: Calcutta High Court

Srinjoy Das

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