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

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...

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

Navya Benny

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.

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