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DV Act | Magistrate Empowered To Refer Matters To Mediation, Record Compromise & Pass Order For Settlement: Kerala High Court

Navya Benny
19 Aug 2022 2:21 PM GMT
Marital Rape A Ground For Divorce : Kerala High Court
In appropriate cases, it would be open to the court to formulate its own procedure, in which event the Court may not have to rely upon Cr.P.C.

The Kerala High Court on Tuesday held that the Magistrate exercising jurisdiction under the Protection of Women from Domestic Violence Act, 2005 (DV Act) has the power to refer the matter before it to mediation as per Section 89 of Civil Procedure Code (CPC), record the compromise and pass an order in terms of the settlement applying the principles of Order XXIII Rule 3 of CPC.

Holding so, Justice Kauser Edappagath further observed that,

DV Act, in general, is of civil kind and the reliefs thereunder are of civil nature and the forum prescribed to secure the reliefs is the criminal court. Merely because the jurisdiction is exercised by the criminal court/Magistrate court and the provisions of Cr.P.C. are followed, it does not change the character of the proceedings as criminal proceedings.

In the petition filed by the husband of the respondent, it was seen that pursuant to an application under Section 12 of the DV Act filed by the respondent, both parties had settled the entire dispute between them in mediation, which was referred by the Judicial First Class Magistrate Court, Kalamassery.

As per the mediation agreement that was amicably entered into by the parties, it was agreed that the shared household which stood in the name of the petitioner would be sold within six months for mobilizing money to pay maintenance and other monetary benefits to the respondent and the sale proceeds would be shared equally between the petitioner and the respondent. Although initially there was an interim order in force till 12.11.2018 restraining the petitioner from alienating the property, since the matter was settled at mediation, the injunction order was not extended. However, the property could not be sold.

Thereafter, when the matter was again referred for mediation upon the request of the parties, in the mediation agreement entered into on 22.01.2020, the parties mutually and amicably consented to divorce and the petitioner also agreed to pay Rs. 25,00,000/- to the respondent within 6 months to settle the entire dispute. On 09.07.2020, the petitioner filed an affidavit in the JFCM Court Kalamassery, that he had been compelled to sign the mediation settlement agreement without understanding the consequences and consequently sought to withdraw from the same, which was found devoid of merits in its order. The instant petition was to set aside this order by the JFCM Court.

The counsels for the petitioner, Advocate Sreelal Warriar and Advocate Biju Mathew, contended that the DV Act does not contain any provision to refer the matter to mediation. It was contended that the proceedings under Sections 12 and 23 of the DV Act are governed by the Criminal Procedure Code (Cr.P.C.), and consequently, Section 89 and Order XXIII Rule 3 of CPC which provides for settlement of disputes through alternate dispute resolution mechanism and compromise of suit would be inapplicable to proceedings under the DV Act. It was further contended that the court below erred in directing the petitioner to pay Rs. 25,00,000/- to the respondent without satisfying the condition that a join petition for divorce by mutual consent must be filed by the parties.

However, the counsel for the respondent, Advocate Shikha G. Nair, contended that the contention of the petitioner that he had signed the mediation agreements without understanding the consequences is baseless and devoid of merits, and also that after entering into a settlement, one of the parties cannot withdraw from it unilaterally.

To the primary contention of the petitioner that the provision of Section 89 and Order XXIII Rule 3 of CPC does not find application in proceedings under Sections 12 and 23 of the DV Act, the Court noted that the very objective behind the DV Act was to conceive a scheme for protecting women against violence within the family, and to provide a remedy in civil law for the same.

The Court went on to note the previous decisions in this regard such as Indra Sarma v. V.K.V.Sarma, wherein the scope of the DV Act had been examined and was held that it was enacted to provide a remedy in civil law for the protection of women from being victims of domestic violence, and Vijaya Baskar v. Suganya Devi, wherein it was held that the proceedings under Sections 12 and 18 to 23 of the DV Act are purely civil in nature.

The Court also took note of its recent decision in Neethu v. Trijo Joseph, wherein it was held that the kinds of reliefs which can be obtained by the aggrieved person under the DV Act are of civil nature and hence, the rights and remedies created under the Act are of civil nature. The Court in this case had also observed that, "the character of the proceedings depends not upon the nature of the forum, which is invested with the authority to grant relief, but upon the nature of the relief sought to be enforced. A proceeding that deals with the right of civil nature do not cease to be so just because the forum for its enforcement prescribed by the statute is the criminal court".

Further, the Court went on to hold that under Section 28 (2) of the DV Act, the Court can formulate its own procedure for disposal of an application under Section 12 or 23 (2) of the Act.

It is clear that even though Section 28(1) of the DV Act provides that all proceedings under Sections 12 and 18 to 23 and for the offence under Section 31 shall be governed by the provisions of Cr.P.C, the court can still lay down its own procedure while dealing with the applications under sub-section (1) of Section 12 or while considering the grant of interim relief or ex parte ad interim relief orders under sub-section (2) of 23. In view of the nature of the proceedings under the DV Act and the procedural flexibility provided under sub-section (2) of Section 28 in deciding the applications under Section 12 or 23(2), it cannot be said that the court is bound to strictly abide by the provisions of Cr.P.C in all cases.

The Court also placed reliance upon the observation made in Afcons Infrastructure Ltd. and Another v. Cherian Varkey Construction Company (P) Ltd. and Others, which stipulates in Sub-clause (ii) of paragraph 19 of the judgment that all cases arising from strained or soured relationships, including disputes relating to matrimonial causes, maintenance etc. are suitable for ADR processes, and it was in this light that the Court arrived at the decision that the Magistrate did have the power to refer the matter before it to mediation, while exercising jurisdiction under the DV Act.

Importantly, the Court remarked that when parties settle the dispute at mediation by signing an agreement detailing the procedure to be followed to work out the settlement, that agreement has all the characteristics of Order XXIII Rule 3 of CPC, and when the parties agreed to settle the dispute in terms of compromise under Order XXIII Rule 3 of CPC, one of the parties cannot unilaterally withdraw from the compromise.

It is only an agreement or compromise which is void or voidable under the Indian Contract Act could be considered as not lawful agreement for the purpose of the Rule. In the instant case, the Court could not find any merit with the petitioner's contention that he was compelled to sign the mediation settlement agreement without understanding the consequences of its terms, noting that the mediation agreements were signed by both the petitioner as well as the counsel for the petitioner, and that the agreement itself contained lawful terms.

The Court also placed reliance upon the observation made in Teena M.Ansari v. Rinoj Eappen that, "a settlement agreement entered between the parties through mediation has got a certain solemnity attached to it and granting permission for withdrawing from such an agreement would destroy the sanctity of the whole process of mediation".

The counsel for the petitioner argued that the default clause in the mediation agreement does not contemplate the recovery of `25,00,000/- promised to be paid, but only the continuance of the proceedings, and since the petitioner had expressed his inability to comply with the settlement, the default clause would come into operation and the court thus, cannot order the payment of the sum without conducting an enquiry in this regard. The Court could not find merit in this argument either. The Court reasoned that "once a settlement has been arrived at between the parties in a lis, that concludes the dispute resolved in the settlement and the parties are bound by it".

The Court further observed that with respect to matters within the ambit of Sections 18 to 22 of the DV Act, the same can be enforced in accordance with the law. However, "as far as the settlement that falls outside the ambit of Sections 18 to 22 is concerned, the parties are bound to follow the terms of the settlement".

It was in this light that the Court held that the order by the Court below to pay the sum of Rs. 25,00,000/- to the respondent falls within Sections 21 and 22 of the DV Act, while the settlement arrived at in the mediation agreement that both parties shall file a joint petition for divorce and get the marriage dissolved does not fall within the ambit Sections 18 to 22, and consequently, the mediation agreement would prevail.

Resultantly, the original petition was dismissed by the Court, having found no cause to interfere with the Order of the JFCM Court, Kalamassery.

Case Title: Mathew Daniel v. Leena Mathew

Citation: 2022 LiveLaw(Ker) 441

Click Here To Read/Download The Order

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