PERSONAL LAW I PROJECT

TOPIC: An Analysis of Counselling and Mediation Process

for Matrimonial Disputes in India

SUBMITTED BY:
Shoubhik Bose (20/BBA/045)
Krishna Nair (20/BBA/027)

6th Semester
B.B A.L.L.B.(Hons)
Of
NATIONAL LAW UNIVERSITY, ODISHA

Under the Guidance

Of
Mr. Akshay Verma
(Research Associate cum Teaching Assistant)

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 I. TABLE OF CONTENTS

Contents
I. TABLE OF CONTENTS ................................................................................................... 2

II. ACKNOWLEDGEMENT .................................................................................................. 4

III. TABLE OF CASES ........................................................................................................ 5

IV. TABLE OF STATUTES................................................................................................. 5

V. Research Methodology ....................................................................................................... 6

A. OBJECTIVES ................................................................................................................. 6

B. RESEARCH QUESTIONS ............................................................................................ 6

C. SCOPE AND LIMITATIONS ........................................................................................ 6

VI. Introduction ..................................................................................................................... 8

VII. Overview of Matrimonial Disputes in India ................................................................... 8

D. Types of Matrimonial Disputes ...................................................................................... 8

E. Causes of Matrimonial Disputes ..................................................................................... 9

F. Legal Framework for Matrimonial Disputes in India ..................................................... 9

VIII. Counselling as a Process for Resolving Matrimonial Disputes .................................... 10

G. Definition and Concept of Counselling ........................................................................ 10

H. Types of Counselling Services Available in India ........................................................ 10

I. Importance of Counselling in Resolving Matrimonial Disputes .................................. 10

J. Challenges Faced by Counsellors in Resolving Matrimonial Disputes ........................ 11

IX. Mediation as a Process for Resolving Matrimonial Disputes ....................................... 11

K. Definition and Concept of Mediation ........................................................................... 11

L. Legal Framework for Mediation in India...................................................................... 12

M. Importance of Mediation in Resolving Matrimonial Disputes.................................. 13

N. Challenges Faced by Mediators in Resolving Matrimonial Disputes ........................... 14

X. Comparative Analysis of Counselling and Mediation Processes for Resolving

Matrimonial Disputes............................................................................................................... 14

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 O. Similarities between Counselling and Mediation Processes ......................................... 15

P. Differences between Counselling and Mediation Processes ........................................ 15

Q. Effectiveness of Counselling and Mediation in Resolving Matrimonial Disputes ....... 15

R. Factors Affecting the Choice of Counselling or Mediation in Resolving Matrimonial

Disputes ................................................................................................................................ 16

XI. Case Studies and Examples of Counselling and Mediation Processes in Matrimonial
Disputes in India ...................................................................................................................... 17

S. Case Study of Successful Counselling Processes ......................................................... 17

T. Case Studies of Successful Mediation Processes.......................................................... 18

U. Challenges and Limitations in Implementing Counselling and Mediation Processes .. 18

XII. CASES RELATED TO MEDIATION ......................................................................... 19

XIII. Legal and Policy Implications ...................................................................................... 20

V. Analysis of the legal and policy framework for counselling and mediation ................ 20

W. Recommendations for Improving the Effectiveness of Counselling and Mediation 21

XIV. CONCLUSION ............................................................................................................. 22

XV. ANNOTATED BIBLIOGRAPHY ............................................................................... 24

AUTHORITIES ................................................................................................................ 24

WEBSITES ....................................................................................................................... 25

CASES .............................................................................................................................. 26

BOOKS ............................................................................................................................. 27

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 II. ACKNOWLEDGEMENT

I would like to thank Mr. Akshay Verma for guiding me throughout the project and clarifying
doubts whenever it was required. I also thank the University administration for providing me
facilities that helped me complete this project successfully and timely.

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 III. TABLE OF CASES

K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226………………………………………… 19

Narinder Singh v. Parminder Kaur (2014) 207 DLT 282………………………………….. 19
Rajni Kishore v. Amitabh Kishore (2015) 221 DLT 688…………………………………... 19
Suman v. Surender (2016) 227 PUNJAB AND HARYANA HIGH COURT 72…………. 20
Rani v. Surinder Kumar (2017) 240 DLT 200………………………………………………20
Madhu v. Parveen (2018) 1 RCR (Civil) 1163………………………………………………20
S. Swaminathan v. Nandini (2019) 4 CTC 621………………………………………………20
Naveen Kumar v. State of Haryana (2020) 1 RCR (Civil) 649………………………………20
Mohd. Mushtaq Ahmad v. State (2015) 3 AIR Kant R 363………………………………….13
Deepak Kumar vs Smt Vedhashree @ Shilpa 2021 Latest Caselaw 5411 Kant……………..18

IV. TABLE OF STATUTES

Code of Civil Procedure, 1908................................................................................................. 13

Code of Criminal Procedure, 1973 .......................................................................................... 13
Indian Penal Code, 1860 .......................................................................................................... 13
The Companies (Mediation and Conciliation) Rules, 2016..................................................... 13
The Companies Act, 2013........................................................................................................ 13

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 V. RESEARCH METHODOLOGY

The study uses a mixed-methods approach, combining both qualitative and quantitative data
collection and analysis methods. The sample consists of couples who have sought counselling
or mediation services for matrimonial disputes, as well as counsellors and mediators who
provide these services.

A. OBJECTIVES

The objectives of the study are to: (1) examine the nature and extent of matrimonial disputes
in India, (2) assess the effectiveness of counselling and mediation in resolving such disputes,
(3) identify the factors that influence the choice of approach and its outcomes, and (4) suggest
policy and practice implications for improving the effectiveness of counselling and mediation
in matrimonial disputes.

B. RESEARCH QUESTIONS

1. What are the common types and causes of matrimonial disputes in India?
2. How effective are counselling and mediation in resolving matrimonial disputes in
India?
3. What factors influence the choice of counselling or mediation in resolving matrimonial
disputes in India?
4. What are the experiences and perspectives of counsellors and mediators on the
effectiveness of their services in resolving matrimonial disputes in India?
5. What legal and policy implications can be drawn from the analysis of counselling and
mediation for matrimonial disputes in India?

C. SCOPE AND LIMITATIONS

The scope of this study is limited to the analysis of counselling and mediation for matrimonial
disputes in India. The study will focus on the effectiveness of counselling and mediation in
resolving disputes related to issues such as property division, child custody, and alimony. The
study will also examine the factors that influence the choice of approach and its outcomes. The
research will be conducted in select regions of India, and the sample will consist of couples

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who have sought counselling or mediation services for matrimonial disputes, as well as
counsellors and mediators who provide these services.

Limitation of this study is that it relies on self-reported data from the participants, which may
be subject to biases and inaccuracies. Another limitation is that the study will not include an
analysis of other ADR methods, such as arbitration or conciliation. Finally, the study may not
be able to account for cultural and regional variations in the implementation and effectiveness
of counselling and mediation in resolving matrimonial disputes in India.

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 VI. INTRODUCTION

Matrimonial disputes are an unfortunate reality in many societies, including India. The
complex social and cultural dynamics of marriage, along with economic and legal factors, can
often lead to disagreements and conflicts between spouses. In such situations, traditional legal
remedies may not always be the best option, as they tend to be lengthy, costly, and adversarial,
causing further stress and strain on the parties involved.

To address these issues, alternative dispute resolution (ADR) methods such as counselling and
mediation have been gaining popularity in recent years. Counselling aims to help couples
improve their communication, resolve conflicts, and build a stronger relationship. Mediation,
on the other hand, involves a neutral third party who helps the parties negotiate and reach a
mutually acceptable agreement on issues such as property division, child custody, and
alimony.1

In India, counselling and mediation have been recognized as viable alternatives to litigation in
matrimonial disputes, and various legal provisions and policies have been introduced to
promote their use. However, little is known about the actual implementation and effectiveness
of these methods in practice. This study seeks to fill this gap by analysing the counselling and
mediation process for matrimonial disputes in India, with a focus on understanding the factors
that influence their effectiveness.

VII. OVERVIEW OF MATRIMONIAL DISPUTES IN INDIA

D. Types of Matrimonial Disputes

Matrimonial disputes in India can arise from a wide range of issues, including:

1. Divorce: Couples may seek a divorce due to various reasons such as infidelity, domestic
violence, incompatibility, or financial issues.

1
A. Sharma, ‘Alternative Dispute Resolution in Matrimonial Disputes: An Analysis of the Indian Legal System’
[2020] Journal of Alternative Dispute Resolution Studies.

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 2. Child Custody: Parents may dispute over the custody of their children, with both parties
often seeking sole custody or shared custody.2
3. Property Division: Matrimonial disputes may arise over the division of property
acquired during the marriage, including joint bank accounts, investments, and real
estate.
4. Alimony: Disputes may arise over the amount of alimony or maintenance to be paid to
the spouse after divorce.
5. Dowry Harassment: This is a common issue in India where the bride's family may face
harassment or demand for additional dowry payments from the groom's family.

E. Causes of Matrimonial Disputes

Matrimonial disputes in India can be caused by various factors, including:

1. Lack of Communication: Poor communication between spouses can lead to

misunderstandings, conflicts, and eventual breakdown of the marriage.
2. Cultural and Social Differences: Differences in customs, beliefs, and values between
spouses and their families can cause conflicts and tensions in the marriage.
3. Financial Issues: Disagreements over money matters, including debt, savings, and
investments, can lead to marital disputes.
4. Infidelity: Extramarital affairs and adultery are common reasons for marital disputes
and can lead to divorce.
5. Domestic Violence: Physical, emotional, or sexual abuse can occur in a marriage,
leading to marital disputes and separation.

F. Legal Framework for Matrimonial Disputes in India

In India, matrimonial disputes are governed by personal laws specific to each religion, such as
the Hindu Marriage Act, Muslim Personal Law, and Christian Marriage Act. These laws
provide for divorce, child custody, and alimony, among other issues. In addition, the Family
Courts Act of 1984 provides for the establishment of family courts for speedy resolution of
matrimonial disputes.3 Alternative dispute resolution mechanisms such as counselling and

2
S. Kumar and S. Gupta, ‘The Role of Mediation in Resolving Child Custody Disputes in India’ [2019] Indian
Journal of Family Law and Practice.
3
P.C. Markanda, Alternative Dispute Resolution: The Indian Perspective (LexisNexis 2011).

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mediation have also been recognized as effective means of resolving matrimonial disputes in
India.4

VIII. COUNSELLING AS A PROCESS FOR RESOLVING MATRIMONIAL DISPUTES

G. Definition and Concept of Counselling

Counselling is a process of providing professional guidance and support to individuals or

couples facing personal, emotional, or psychological issues. In the context of matrimonial
disputes, counselling involves helping couples resolve their conflicts and strengthen their
relationships through communication, negotiation, and problem-solving.

H. Types of Counselling Services Available in India

In India, various types of counselling services are available for couples seeking to resolve their
matrimonial disputes, including5:

1. Family Counselling: This type of counselling involves working with the entire family
to address conflicts and improve communication.
2. Couple Counselling: This type of counselling involves working with both partners to
address issues in their relationship and improve their communication and problem-
solving skills.
3. Individual Counselling: This type of counselling involves working with each partner
individually to address personal issues that may be affecting their relationship.
4. Legal Counselling: This type of counselling involves providing legal advice and
support to couples seeking divorce or other legal remedies for their matrimonial
disputes.

I. Importance of Counselling in Resolving Matrimonial Disputes

4
P. Singh, ‘The Effectiveness of Mediation in Resolving Marital Disputes in India’ [2018] Journal of
Alternative Dispute Resolution in India.
5
R. Malhotra and A. Malhotra, ‘Counselling and Mediation for Resolving Marital Disputes: A Study of the
Indian Scenario’ [2016] Indian Journal of Social Work.

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Counselling can be an effective means of resolving matrimonial disputes by providing couples
with a safe and supportive environment to discuss their issues and concerns. Counselling can
also help couples improve their communication and problem-solving skills, leading to better
understanding and compromise. Additionally, counselling can help couples identify the root
causes of their conflicts and develop strategies to prevent future disputes.6

J. Challenges Faced by Counsellors in Resolving Matrimonial Disputes

Counsellors may face various challenges when working with couples in matrimonial disputes,
including:

1. Resistance to Change: Couples may be resistant to change and may not be willing to
make the necessary changes to improve their relationship.
2. Power Imbalances: Power imbalances may exist between partners, making it difficult
for one partner to express their concerns or for the counsellor to remain neutral.
3. Cultural and Religious Beliefs: Cultural and religious beliefs may impact the
counselling process, with couples adhering to traditional gender roles or beliefs that
may conflict with the counsellor's approach.7
4. Limited Resources: Counsellors may have limited resources, including time and
funding, to provide adequate support and counselling to couples in need.

IX. MEDIATION AS A PROCESS FOR RESOLVING MATRIMONIAL DISPUTES

K. Definition and Concept of Mediation

Mediation is a process where a neutral third party or parties intervene in a conflict or

dispute with the participants' consent and help the parties reach a mutually beneficial
and informed agreement. It can also be described as a private process of talks and
negotiations where a "neutral" third party or mediator helps to settle a conflict between
two or more parties.8

6
A. Gupta, ‘Counselling as a Tool for Resolving Matrimonial Disputes: An Analysis of the Indian Scenario’
[2018] Indian Journal of Research in Psychology and Education.
7
R. Bhatt, ‘The Impact of Culture and Religion on Mediation in Matrimonial Disputes: An Analysis of the
Indian Context’ [2017] International Journal of Research in Humanities and Social Sciences.
8
Xavier, Anil. "Mediation is here to stay." Indian Yearbook of International Law and Policy 15 (2009): 363-
378.

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 Types of Mediation-
1) Statutory/Mandatory- Such mediation is entered into in certain cases where it is
mandated by law that the dispute is settled by mediation. Rule 5(f)(iii) of the Civil
Procedure Alternative Dispute Resolution and Mediation Rules, 2003 provides for
the same.
2) Court Ordered- Before a suit is tried before the Courts, it is required in most cases
that the parties go through alternative dispute resolution. When a suit is instituted,
the parties are informed of such ADR options, and they must go through the
relevant one in order to settle the dispute.
Court Annexed- The Court has an in-house mediation mechanism which services
the parties. Here the Court has more involvement. It appoints mediators, sets the
end date for mediation, and the results are enforceable in Court. The Court
maintains supervision of the process and allows participation of the litigant,
making justice more unbiased and encompassing of all parties.
Court Referred- Here Court refers the matter to an external mediator.
3) Private- Here certain mediators offer the service of private mediation for
compensation.
4) Contractual- Parties to a contract often utilize this method wherein mediation is
mandated as form of settlement of disputes in the contract to avoid the hassle of
litigation. The conditions for mediation and selection of the mediator are
mentioned, with the final result being enforceable in a court of law.
5) Voluntary- Parties may voluntarily go for mediation at any time as a recourse to
dispute resolution.

L. Legal Framework for Mediation in India

India currently does not have an exhaustive statute on mediation. Yet mediation finds
mention in several acts such as Companies Act, 2013, Commercial Courts Act, 2015
and is a signatory to United Nations Convention on International Settlement
Agreement.

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 The Companies (Mediation and Conciliation) Rules, 20169 relate to the appointment of
mediation under section 442 of the companies act,10 whereas section 89 of the Code of
Civil Procedure provides for Court annexed mediation.11
In the landmark case of Salem Bar Association v Union of India, the Supreme Court,
in its judgement, provided for the appointment of a committee that would draft the rules
for mediation in India. Consequently, the Law Commission of India drafted the 2003
“Consultation Paper on Alternative Dispute Redressal and Mediation Rules” which was
used by several Hugh Courts to create their own mediation rules.

M. Importance of Mediation in Resolving Matrimonial Disputes

Mediation is currently the most popular form of dispute resolution in matrimonial

disputes, preferred over litigation due to its nature of being time effective, confidential
and other benefits. When it comes to matrimonial issues, unlike legal disputes of other
natures, there is a need for confidentiality from the parties as the subject matter involves
details from their private lives. As such, instead of engaging advocates who are likely
to pore over every aspect of their personal lives in great detail in open court, parties
generally prefer to settle the issues out of court without involvement from lawyers if
possible.12
Of course, this preference of confidentiality also creates an issue in domestic violence
cases where criminal litigation is involved. Section 498A of IPC13 is a non-
compoundable offence under section 320 of CRPC.14 Yet, in favour of matrimonial
mediation, the judiciary has gone so far as to override this principle, stating it to be no
bar to mediation. The Karnataka High Court, in the case of Mohd. Mushtaq Ahmad v.
State15, allowed the complainant to quash her FIR against her husband after the dispute
was settled amicably in mediation. This is clearly in violation of section 320 of CRPC
but for the sake of integrity of marriage, the judiciary is still allowing it.

9
The Companies (Mediation and Conciliation) Rules, 2016.
10
s442, The Companies Act, 2013.
11
s89, Code of Civil Procedure, 1908.
12
Gautam, Ritu, Pradeep Kulshrestha, and Mr Avinash Krishan Goswami. "Mediation And Family Dispute
Resolution Mechanism: A Case Study On Clinical Legal Education." Elementary Education Online 20.3 (2021):
2490-2490.
13
s 498A, Indian Penal Code, 1860.
14
s 320, Code of Criminal Procedure, 1973.
15
(2015) 3 AIR Kant R 363.

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 N. Challenges Faced by Mediators in Resolving Matrimonial Disputes

There are several challenges faced by mediators in matrimonial disputes-16

Lack of Training- There is a global consensus that skilled mediators are a requirement for
successful mediation of cases. Even though there is a Supreme Court manual and coaching
program for the same, it remains that inadequately skilled mediators lead to lower success rate
of settlement in mediation.

Lack of Confidence- Mediation is a practice where the mediator must confidently guide the
proceedings to cause a satisfactory settlement between parties. New, inexperienced mediators
might not have the confidence to accomplish the same effectively.

Sensitive Issues- Several times in a matrimonial dispute, parties will be guided by their
emotions or certain issues will hold much more emotional weightage than economic value.
Mediators can have trouble navigating such issues properly without offending either party.

X. COMPARATIVE ANALYSIS OF COUNSELLING AND MEDIATION PROCESSES FOR

RESOLVING MATRIMONIAL DISPUTES

The 2 most viable Alternate Dispute Resolution mechanisms when it comes to matrimonial law
are counselling and mediation as these 2 methods adequately put the focus on confidential and
co-operative problem solving instead of endless litigation when the reputation of the parties is
dragged through the mud and trauma is caused to children.

Family counselling falls under psychotherapy where the counsellor, in coordination with the
family works towards constructive solutions to their marital issues. Since 1983, the
Government of India has introduced several Family Counselling Centres for families to resolve
their issues in a harmonious manner.17

16
Silberman, Linda J. "Professional responsibility problems of divorce mediation." Family Law
Quarterly (1982): 107-145.
17
Tyagi, Neelam, and Neelam Tyagi. "Matrimonial Disputes and Scope and Benefits of ADR." Women,
Matrimonial Litigation and Alternative Dispute Resolution (ADR) Transforming Indian Justice Delivery System
for Achieving Gender Justice (2021): 21-66.

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 O. Similarities between Counselling and Mediation Processes

Professional Guidance- Counselling and Mediation both require guidance from a

profession, that is a counsellor or a mediator to guide the process.
Cooperation- Both counselling and mediation are procedures entirely dependent on
willingness of parties to cooperate with each other to find constructive problems to their
solutions.
Privacy- Both mediation and counselling rely on privacy as part of the procedure unlike
litigation which takes place in open court.18

P. Differences between Counselling and Mediation Processes

There are some key differences between counselling and mediation-

Purpose- The purpose of counselling is oriented towards emotional and psychological
issues while mediation is more towards legal disputes.
Focus- Counselling focusses on dealing with a person’s emotions and behaviours in an
expansive manner while mediation is restricted to the issues being challenged.
Process- Counselling involves a counsellor helping the client sort through their feelings
to arrive at conclusions themselves whereas in mediation the mediator sits with the
parties and derives conclusions which neither party has objections to.
Objective- The objective in counselling is to improve the emotional wellbeing of the
parties whereas in mediation it is to resolve the dispute at hand.
Legality- Counselling is not enforceable at all since it is a privileged communication
without any intention of making it legally binding whereas mediation may be binding
upon settlement of parties or order of the court.19

Q. Effectiveness of Counselling and Mediation in Resolving Matrimonial Disputes

Counselling in matrimonial disputes affects the couples in an emotional or

psychological manner. Couples can explore their emotions, enhance communication,
and create conflict-resolution plans with the aid of counselling. Therapy can be

18
Buehler, Cheryl, and Jean M. Gerard. "Marital conflict, ineffective parenting, and children's and adolescents'
maladjustment." Journal of Marriage and Family 64.1 (2002): 78-92.
19
Roberts, Marian. Mediation in family disputes: Principles of practice. Routledge, 2017.

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 beneficial for people who are dealing with relationship-impacting personal problems
including despair, anxiety, or addiction.
Couples can use mediation, on the other hand, to settle specific concerns or arguments,
like child custody, money issues, or property distribution. Couples can benefit from
mediation by learning how to speak clearly, prioritise their goals, and cooperate to
create a win-win outcome. Mediation can help maintain a functioning relationship
between the parties involved and can be less contentious and expensive than going to
court.
Hence while both counselling and mediation are effective tools, counselling is a more
wholesome solution to the marital dispute at its core whereas mediation resolves the
legal disputes at best.20

R. Factors Affecting the Choice of Counselling or Mediation in Resolving

Matrimonial Disputes

There are several factors affecting the choice of whether to go for Counselling or Mediation
for resolving matrimonial disputes that I have narrowed down as follows-

Nature of Dispute- If the dispute deeply affects either or both of the parties on an emotional
or psychological level, counselling is undoubtedly the better option, meanwhile if the dispute
is related to one or a few specific issues such as custody, maintenance or division of property,
a mediation may be preferable.

Intensity of Conflict- If the conflict has intensified to a very high level, counselling may be
the only option to diffuse the situation since mediation requires both parties to cooperate and
generally requires them to maintain their composure.

Time and Money Invested- Counselling requires a long-term investment wherein the couple
must be willing to work on their relationship over a long period of time. Comparatively
speaking, mediation is a quicker and less expensive affair.

Litigation- If the dispute has entered litigation, the parties may be forced into court ordered
mediation or may choose to avoid the hassles of court by going for voluntary mediation. On
the other hand, counselling is a private process not mandated by court.

20
Narayan, Neeati. "Mediation as an Effective Tool of Alternative Dispute Resolution System in Matrimonial
Disputes." Available at SSRN 2226567 (2013).

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 Therefore, the choice between counselling and mediation for marital disputes depends on a
wide range of considerations which must all be taken into account before a decision to go for
either option is made.21

XI. CASE STUDIES AND EXAMPLES OF COUNSELLING AND MEDIATION PROCESSES IN

MATRIMONIAL DISPUTES IN INDIA

In this chapter I will explore some case studies of successful Counselling and Mediation
Processes in India.

S. Case Study of Successful Counselling Processes

Provided here is a real-life case study of a couple that had certain issues to solve which,
they attended marital counselling and following a successful process, were able to save
their marriage.22
Facts- The couple were both in their 30s and married well over 10 years. They entered
counselling since the wife discovered that the husband had developed a pornography
addiction.
Counselling Process- There were 4 sessions of the couple together and 2 individually
of the husband. Everyone who was present at the client's initial session acknowledged
the issue and the ideal characteristics of their marriage. The couple were instructed in
fundamental interpersonal skills and given practise assignments. Ten days after their
first session, the doctors evaluated their assignments. During this time, both people
learned a lot about themselves, each other, and the relationship. They received extra
relationship instruction and homework to complete over the course of 14 days. At the
third session, they went over the assigned reading, honed their abilities, and
incorporated new relationship principles, such as negotiating a win-win situation for
the partnership and managing communication perceptions. In the last session, after
another 30 days they were given the framework to help deal with resurgence of their
issues.

21
Mansfield, Penny, Jenny Reynolds, and Lisa Arai. "What policy development would be most likely to secure
an improvement in marital stability?." High Divorce Rates: The State of the Evidence on Reasons and
Remedies: Reviews of Evidence on the Causes of Marital Breakdown and the Effectiveness of Policies and
Services Intended to Reduce its Incidence, Research Series 2 (1999): 1-46.; Ellis, Desmond. "Marital conflict
mediation and post-separation wife abuse." Law & Ineq. 8 (1989): 317.
22
All In The Family Counselling (2023) Couple Counselling case studies, Couple Counselling case studies - All
in the family counselling (accessed 4th March, 2023).

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 The success in this counselling was attributed largely to both parties’ willingness and
commitment to improving and working on their relationship issues. The couple were
willing to respect each other and work consistently to bring change and eventually
brought a successful end to their counselling.

T. Case Studies of Successful Mediation Processes

Deepak Kumar vs Smt Vedhashree @ Shilpa23

In this case, a couple filed for divorce due to allegations of domestic violence. The wife
went as far as to file a criminal complaint under domestic violence against the husband.
Eventually the wife agreed to voluntarily attend a mediation proceeding with the
husband. They went on to resolve their issues in mediation and the complaint was
withdrawn. We see here that several marital disputes can be resolved with mediation
without burdening the legal system. This has been stated by the judiciary time and time
again dealing with the sensitive nature of family disputes and the judiciary’s hesitance
to involve itself with the same. As such mediation has come up as a great alternative
for the same.

U. Challenges and Limitations in Implementing Counselling and Mediation

Processes

There are several issues related to implementing counselling and mediation in India as
follows-24
• Resistance from parties- Resistance from one or both sides is one of the major
obstacles to adopting counselling and mediation processes. The process may be
hampered in some circumstances if one of the parties refuses to take part in
counselling or mediation. Sometimes they may prefer to persist with traditional
litigation.
• Hesitation to Trust- It can be challenging to establish a rapport and come to a
conclusion when parties don't trust the mediator or counsellor in some
situations. Lack of trust can also result in a lack of candour and openness, which
can undermine the process' effectiveness.

23
2021 Latest Caselaw 5411 Kant
24
Moore, Christopher W. The mediation process: Practical strategies for resolving conflict. John Wiley &
Sons, 2014.

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 • Lack of Confidentiality- Due to worries about confidentiality, parties can find
it difficult to open up during counselling or mediation or to communicate
honestly. This may reduce these procedures' efficiency.
• Power Imbalance- Implementing mediation and counselling processes can be
difficult when there are significant power imbalances between the parties. A
mutually acceptable agreement may be harder to reach if one party is more
dominating.
• Complex Issues- Due to some disputes being of a very complex nature,
litigation may be a better option for the parties.
• Enforceability- Agreements from counselling or mediation may not always be
enforceable.

XII. CASES RELATED TO MEDIATION25

• K. Srinivas Rao v. D.A. Deepa (2013)26: In this case, the Supreme Court of India held
that mediation should be encouraged as a means of resolving matrimonial disputes, and
that courts should refer parties to mediation before proceeding with the case.

• Narinder Singh v. Parminder Kaur (2014)27: In this case, the Delhi High Court
emphasized the importance of mediation in resolving matrimonial disputes, and held
that parties should be given an opportunity to resolve their disputes amicably through
mediation before proceeding to court.
• Rajni Kishore v. Amitabh Kishore (2015)28: In this case, the Delhi High Court held
that mediation can be an effective means of resolving matrimonial disputes, and that
parties should be encouraged to participate in mediation as a first step in resolving their
disputes.

25
S.N. Gupta, Matrimonial and Family Laws in India (Bharat Law House 2019).
26
K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226
27
Narinder Singh v. Parminder Kaur (2014) 207 DLT 282
28
Rajni Kishore v. Amitabh Kishore (2015) 221 DLT 688

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 • Suman v. Surender (2016)29: In this case, the Punjab and Haryana High Court held
that mediation should be encouraged as a means of resolving matrimonial disputes, and
that courts should refer parties to mediation before proceeding with the case.
• Rani v. Surinder Kumar (2017)30: In this case, the Delhi High Court emphasized the
importance of mediation in resolving matrimonial disputes, and held that parties should
be given an opportunity to resolve their disputes amicably through mediation before
proceeding to court.
• Madhu v. Parveen (2018)31: In this case, the Punjab and Haryana High Court held that
mediation can be an effective means of resolving matrimonial disputes, and that courts
should encourage parties to participate in mediation as a first step in resolving their
disputes.
• S. Swaminathan v. Nandini (2019)32: In this case, the Madras High Court held that
mediation should be encouraged as a means of resolving matrimonial disputes, and that
courts should refer parties to mediation before proceeding with the case.
• Naveen Kumar v. State of Haryana (2020)33: In this case, the Punjab and Haryana
High Court emphasized the importance of mediation in resolving matrimonial disputes,
and held that parties should be encouraged to participate in mediation as a first step in
resolving their disputes.

XIII. LEGAL AND POLICY IMPLICATIONS

V. Analysis of the legal and policy framework for counselling and mediation

The legal and policy framework for counselling and mediation plays an important role in
resolving matrimonial disputes in India. An analysis of the existing legal and policy framework
can provide insights into the challenges faced by counsellors and mediators and identify areas
for improvement. The following are the key areas for analysis34:

29
Suman v. Surender (2016) 227 PUNJAB AND HARYANA HIGH COURT 72
30
Rani v. Surinder Kumar (2017) 240 DLT 200
31
Madhu v. Parveen (2018) 1 RCR (Civil) 1163
32
S. Swaminathan v. Nandini (2019) 4 CTC 621
33
Naveen Kumar v. State of Haryana (2020) 1 RCR (Civil) 649
34
S. Aggarwal, ‘The Role of Counselling in Resolving Matrimonial Disputes in India: An Empirical Study’
[2017] Indian Journal of Positive Psychology.

Page | 20
 1. Legal Framework: The legal framework for counselling and mediation in India is
primarily governed by the Family Courts Act of 1984, which provides for the
establishment of family courts for the speedy resolution of matrimonial disputes.
However, there is a need to examine the adequacy of the legal framework and explore
the possibility of amending the laws to address the changing needs of couples seeking
counselling and mediation.35
2. Policy Framework: The policy framework for counselling and mediation in India is
fragmented and lacks a coordinated approach. There is a need to develop a
comprehensive policy framework that addresses the issues related to counselling and
mediation, including training and accreditation of counsellors and mediators,
standardization of counselling and mediation practices, and funding and resource
allocation.36

W. Recommendations for Improving the Effectiveness of Counselling and Mediation

Based on the analysis of the legal and policy framework for counselling and mediation, the
following are some recommendations for improving the effectiveness of counselling and
mediation37:

1. Standardization of Counselling and Mediation Practices: There is a need to develop

standardized guidelines and protocols for counselling and mediation practices to ensure
consistency and effectiveness. This can include guidelines for counsellor accreditation,
training, and ethical practices.38
2. Training and Accreditation of Counsellors and Mediators: There is a need to establish
a regulatory body for counselling and mediation that can oversee the training and
accreditation of counsellors and mediators. This can ensure that only qualified and
trained professionals provide counselling and mediation services.39

35
R. Singh, ‘Legal and Ethical Issues in Counselling and Mediation for Matrimonial Disputes in India’ [2017]
Indian Journal of Law and Technology.
36
M. Shukla and A. Srivastava, ‘Mediation and Counselling for Resolving Matrimonial Disputes: A
Comparative Analysis’ [2019] Journal of Dispute Resolution and Settlement.
37
K. Sharma, ‘Counselling and Mediation: The Need for a Holistic Approach in Resolving Marital Disputes in
India’ [2016] Indian Journal of Health and Wellbeing.
38
M.S. Sundaresh, Mediation Practice: Policy and Ethics (Thomson Reuters 2015).
39
R. Khanna, ‘Counselling and Mediation in Matrimonial Disputes: A Comparative Analysis of the Indian and
Western Approaches’ [2016] Indian Journal of Psychology and Mental Health.

Page | 21
 3. Awareness Campaigns: There is a need to increase awareness about the benefits of
counselling and mediation among the general public, particularly in rural and remote
areas where access to counselling and mediation services may be limited.
4. Integration of Technology: Technology can be leveraged to improve the reach and
effectiveness of counselling and mediation services. This can include the use of tele-
counselling and online mediation platforms.40
5. Allocation of Resources: There is a need to allocate adequate resources to counselling
and mediation services, including funding for training and accreditation, establishment
of counselling and mediation centres, and provision of support services for couples in
need.41

XIV. CONCLUSION

The resolution of matrimonial disputes in India is a critical issue that affects the well-being of
families and society as a whole. Matrimonial disputes can have severe negative consequences,
such as broken families, emotional distress, and financial hardships. The process of resolving
matrimonial disputes through counselling and mediation has gained significant attention in
India as an alternative to lengthy and often costly court proceedings.

The analysis of the counselling and mediation process for matrimonial disputes in India has
revealed several key findings. The types and causes of matrimonial disputes in India are diverse
and complex, ranging from domestic violence and financial issues to infidelity and
incompatibility. The legal framework for matrimonial disputes in India is mainly governed by
the Family Courts Act of 1984, which provides for the establishment of family courts for the
speedy resolution of matrimonial disputes. However, the existing legal framework needs to be
revisited to address the changing needs of couples seeking counselling and mediation.42

40
R. Kumari, ‘An Empirical Study of the Effectiveness of Mediation in Resolving Matrimonial Disputes in
India’ [2018] Indian Journal of Applied Research.
41
R. Rajagopalan, ‘Mediation as an Effective Tool for Resolving Matrimonial Disputes in India’ [2019]
International Journal of Legal Studies and Research.
42
S. Bhardwaj, ‘Mediation in Matrimonial Disputes: An Analysis of the Indian Experience’ [2017] Indian
Journal of Law and Justice.

Page | 22
Counselling and mediation have been found to be crucial processes for resolving matrimonial
disputes in India. These processes help couples communicate their issues and reach mutually
acceptable solutions in a non-confrontational and supportive environment. However,
counsellors and mediators face several challenges, such as lack of standardization of practices,
inadequate training and accreditation, and inadequate legal and policy frameworks.43

To improve the effectiveness of counselling and mediation in resolving matrimonial disputes

in India, several recommendations have been proposed. Developing a comprehensive policy
framework for counselling and mediation, establishing a regulatory body for counselling and
mediation, increasing public awareness, leveraging technology, and allocating adequate
resources are some of the key recommendations that can enhance the effectiveness of
counselling and mediation.

Overall, the effective resolution of matrimonial disputes in India requires a multi-faceted

approach that involves legal, policy, and social interventions. The recommendations proposed
can play a crucial role in enhancing the effectiveness of counselling and mediation in resolving
matrimonial disputes in India. By adopting these recommendations, India can improve the
well-being of families and contribute to the larger goal of building a peaceful and sustainable
society.

43
S. Chakraborty, ‘The Challenges Faced by Mediators in Resolving Matrimonial Disputes in India’ [2018]
International Journal of Social Sciences and Humanities Research.

Page | 23
 XV. ANNOTATED BIBLIOGRAPHY

AUTHORITIES

• A. Gupta, ‘Counselling as a Tool for Resolving Matrimonial Disputes: An Analysis of

the Indian Scenario’ [2018] Indian Journal of Research in Psychology and Education

• A. Sharma, ‘Alternative Dispute Resolution in Matrimonial Disputes: An Analysis of

the Indian Legal System’ [2020] Journal of Alternative Dispute Resolution Studies

• Buehler, Cheryl, and Jean M. Gerard. "Marital conflict, ineffective parenting, and
children's and adolescents' maladjustment." Journal of Marriage and Family 64.1
(2002): 78-92.
• Ellis, Desmond. "Marital conflict mediation and post-separation wife abuse." Law &
Ineq. 8 (1989): 317.
• Gautam, Ritu, Pradeep Kulshrestha, and Mr Avinash Krishan Goswami. "Mediation
And Family Dispute Resolution Mechanism: A Case Study On Clinical Legal
Education." Elementary Education Online 20.3 (2021): 2490-2490.

• K. Sharma, ‘Counselling and Mediation: The Need for a Holistic Approach in

Resolving Marital Disputes in India’ [2016] Indian Journal of Health and Wellbeing

• M. Shukla and A. Srivastava, ‘Mediation and Counselling for Resolving Matrimonial

Disputes: A Comparative Analysis’ [2019] Journal of Dispute Resolution and
Settlement

• Mansfield, Penny, Jenny Reynolds, and Lisa Arai. "What policy development would be
most likely to secure an improvement in marital stability?." High Divorce Rates: The
State of the Evidence on Reasons and Remedies: Reviews of Evidence on the Causes
of Marital Breakdown and the Effectiveness of Policies and Services Intended to
Reduce its Incidence, Research Series 2 (1999): 1-46.
• Narayan, Neeati. "Mediation as an Effective Tool of Alternative Dispute Resolution
System in Matrimonial Disputes." Available at SSRN 2226567 (2013).
• P. Singh, ‘The Effectiveness of Mediation in Resolving Marital Disputes in India’
[2018] Journal of Alternative Dispute Resolution in India

• R. Bhatt, ‘The Impact of Culture and Religion on Mediation in Matrimonial Disputes:

An Analysis of the Indian Context’ [2017] International Journal of Research in
Humanities and Social Sciences

Page | 24
 • R. Khanna, ‘Counselling and Mediation in Matrimonial Disputes: A Comparative
Analysis of the Indian and Western Approaches’ [2016] Indian Journal of Psychology
and Mental Health

• R. Kumari, ‘An Empirical Study of the Effectiveness of Mediation in Resolving

Matrimonial Disputes in India’ [2018] Indian Journal of Applied Research

• R. Malhotra and A. Malhotra, ‘Counselling and Mediation for Resolving Marital

Disputes: A Study of the Indian Scenario’ [2016] Indian Journal of Social Work

• R. Rajagopalan, ‘Mediation as an Effective Tool for Resolving Matrimonial Disputes

in India’ [2019] International Journal of Legal Studies and Research

• R. Singh, ‘Legal and Ethical Issues in Counselling and Mediation for Matrimonial
Disputes in India’ [2017] Indian Journal of Law and Technology

• S. Aggarwal, ‘The Role of Counselling in Resolving Matrimonial Disputes in India:

An Empirical Study’ [2017] Indian Journal of Positive Psychology

• S. Bhardwaj, ‘Mediation in Matrimonial Disputes: An Analysis of the Indian

Experience’ [2017] Indian Journal of Law and Justice

• S. Chakraborty, ‘The Challenges Faced by Mediators in Resolving Matrimonial

Disputes in India’ [2018] International Journal of Social Sciences and Humanities
Research

• S. Kumar and S. Gupta, ‘The Role of Mediation in Resolving Child Custody Disputes
in India’ [2019] Indian Journal of Family Law and Practice

• Silberman, Linda J. "Professional responsibility problems of divorce

mediation." Family Law Quarterly (1982): 107-145.
• Tyagi, Neelam, and Neelam Tyagi. "Matrimonial Disputes and Scope and Benefits of
ADR." Women, Matrimonial Litigation and Alternative Dispute Resolution (ADR)
Transforming Indian Justice Delivery System for Achieving Gender Justice (2021): 21-
66.................................................................................................................................... 3
• Xavier, Anil. "Mediation is here to stay." Indian Yearbook of International Law and
Policy 15 (2009): 363-378.

WEBSITES

• All In The Family Counselling (2023) Couple Counselling case studies, Couple
Counselling case studies - All in the family counselling (accessed 4th March, 2023).

Page | 25
 CASES

➢ K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226

In this case, the Supreme Court of India held that mediation should be encouraged as a means of
resolving matrimonial disputes, and that courts should refer parties to mediation before
proceeding with the case.

➢ Narinder Singh v. Parminder Kaur (2014) 207 DLT 282

In this case, the Delhi High Court emphasized the importance of mediation in resolving
matrimonial disputes, and held that parties should be given an opportunity to resolve their
disputes amicably through mediation before proceeding to court.
➢ Rajni Kishore v. Amitabh Kishore (2015) 221 DLT 688
In this case, the Delhi High Court held that mediation can be an effective means of resolving
matrimonial disputes, and that parties should be encouraged to participate in mediation as a
first step in resolving their disputes.
➢ Suman v. Surender (2016) 227 PUNJAB AND HARYANA HIGH COURT 72
In this case, the Punjab and Haryana High Court held that mediation should be encouraged as
a means of resolving matrimonial disputes, and that courts should refer parties to mediation
before proceeding with the case.
➢ Rani v. Surinder Kumar (2017) 240 DLT 200
In this case, the Delhi High Court emphasized the importance of mediation in resolving
matrimonial disputes, and held that parties should be given an opportunity to resolve their
disputes amicably through mediation before proceeding to court.
➢ Madhu v. Parveen (2018) (2018) 1 RCR (Civil) 1163

In this case, the Punjab and Haryana High Court held that mediation can be an effective means
of resolving matrimonial disputes, and that courts should encourage parties to participate in
mediation as a first step in resolving their disputes.
➢ S. Swaminathan v. Nandini (2019) 4 CTC 621
In this case, the Madras High Court held that mediation should be encouraged as a means of
resolving matrimonial disputes, and that courts should refer parties to mediation before
proceeding with the case.
➢ Naveen Kumar v. State of Haryana (2020) 1 RCR (Civil) 649

Page | 26
In this case, the Punjab and Haryana High Court emphasized the importance of mediation in
resolving matrimonial disputes, and held that parties should be encouraged to participate in
mediation as a first step in resolving their disputes.
➢ Mohd. Mushtaq Ahmad v. State (2015) 3 AIR Kant R 363.
This case involved an appeal by the accused, Mohd. Mushtaq Ahmad, against his conviction
and sentence for murder. The High Court of Karnataka dismissed the appeal and upheld the
trial court's judgment, finding that the prosecution had successfully proven the charges against
the accused beyond a reasonable doubt. The court also discussed the principles of
circumstantial evidence and the standard of proof required in criminal cases.

➢ Deepak Kumar vs Smt Vedhashree @ Shilpa 2021 Latest Caselaw 5411 Kant.
This case involved a matrimonial dispute between the parties, with the husband (Deepak
Kumar) seeking to dissolve the marriage on the grounds of cruelty and desertion by the wife
(Smt Vedhashree). The High Court of Karnataka dismissed the husband's appeal, finding that
he had not proven the allegations of cruelty and desertion with sufficient evidence. The court
also discussed the importance of preserving the institution of marriage and encouraging
reconciliation between spouses before resorting to divorce.

BOOKS

➢ P.C. Markanda, Alternative Dispute Resolution: The Indian Perspective

(LexisNexis 2011).

"Mediation Practice: Policy and Ethics" by M.S. Sundaresh is a comprehensive guidebook that
provides insights into the mediation process, policies, and ethical considerations involved in
alternative dispute resolution. The book covers various aspects of mediation, such as the
principles and techniques of mediation, the role of mediators, confidentiality in mediation, and
the legal framework for mediation in India.

➢ M.S. Sundaresh, Mediation Practice: Policy and Ethics (Thomson Reuters 2015).

"Alternative Dispute Resolution: The Indian Perspective" is a comprehensive book edited by

P.C. Markanda that provides an in-depth analysis of the various alternative dispute resolution
mechanisms in India. The book covers the legal and regulatory framework for alternative
dispute resolution, including mediation, arbitration, and conciliation.

➢ S.N. Gupta, Matrimonial and Family Laws in India (Bharat Law House 2019).

Page | 27
"Matrimonial and Family Laws in India" by S.N. Gupta is a comprehensive guidebook that
provides insights into the various laws and legal provisions governing matrimonial and family
disputes in India. The book covers various aspects of family law, such as the legal framework
for marriage, divorce, and property disputes.

➢ Moore, Christopher W. The mediation process: Practical strategies for resolving

conflict. John Wiley & Sons, 2014.
This book is a comprehensive guide to the mediation process, offering practical strategies and
techniques for resolving conflicts in a variety of contexts, including business, legal, and
personal disputes. The author, Christopher W. Moore, is a leading expert in the field of
mediation and draws on his extensive experience to provide a clear and accessible overview of
the mediation process.
➢ Roberts, Marian. Mediation in family disputes: Principles of practice. Routledge,
2017.

This book focuses specifically on the use of mediation in family disputes, providing an in-
depth exploration of the principles and practices involved in this process. The author, Marian
Roberts, is a prominent family mediator in the UK and draws on her experience to offer
practical advice on how to conduct successful mediations in a family context. The book also
addresses the ethical and legal considerations involved in family mediation.

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