Case BriefsSupreme Court

Supreme Court: The 5-judge bench of Ranjan Gogoi, CJ and SA Bobde, Dr. DY Chandrachud, Ashok Bhushan and SA Nazeer, JJ has asked the Justice F.M. Ibrahim Kalifulla led Mediation Committee to submit the outcome of the mediation proceedings as on 31.7.2019 by 1.8.2019.


Pursuant to the order dated 11.7.2019, Justice F.M. Ibrahim Kalifulla had submitted a report before the Court but since the Court had ordered that the proceedings of mediation will confidential, the bench refused to disclose the contents of the report. However, taking into account what has been brought to its notice by the said report, the Court fixed the daily hearing of the cases from 2.8.2019.

[M. Siddiq v. Mahant Suresh Das, Civil Appeal Nos. 10866-10867/2010, order dated 11.07.2019]

Also read:

Ayodhya Dispute to be settled by a ‘confidential’ Court monitored mediation; No Gag order passed [Full Report]

Should Ayodhya dispute be decided by mediation? SC to decide on March 6 [Full Report]

Ram Mandir Babri Masjid| Ayodhya matter not to be referred to larger bench; matter not barred by res judicata in Ismail Faruqui case either: SC

Case BriefsSupreme Court

Supreme Court: The 5-judge bench of Ranjan Gogoi, CJ and SA Bobde, Dr. DY Chandrachud, Ashok Bhushan and SA Nazeer, JJ has asked Justice F.M. Ibrahim Kalifulla, the Chairman of the Mediation Committee, to inform it the progress of mediation till date and the stage at which the said process is presently at, latest by 18th July, 2019. The Court said that it will accordingly pass further orders on July 18.

It also made clear,

“if this Court comes to a conclusion that, having regard to the report of Justice F.M. Ibrahim Kalifulla, the mediation proceedings should be ordered to be concluded, the Court will do so and order for commencement of the hearing of the appeals before it, tentatively, on and from 25th July, 2019, which hearings, if required, will be conducted on day-to-day basis.”

On March 8, the Court had referred the Ram Janmabhoomi-Babri Masjid land dispute case, famously known as the Ayodhya Dispute, to a Court-monitored Mediation.

On May 7, Justice F.M. Ibrahim Kalifulla, a former Judge of this Court, submitted a report requesting for extension of time to complete the proceedings. Time was granted by this Court by its order dated 10th May, 2019, up to 15th August, 2019.

[M. Siddiq v. Mahant Suresh Das, 2019 SCC OnLine SC 844, order dated 11.07.2019]

Also read:

Ayodhya Dispute to be settled by a ‘confidential’ Court monitored mediation; No Gag order passed [Full Report]

Should Ayodhya dispute be decided by mediation? SC to decide on March 6 [Full Report]

Ram Mandir Babri Masjid| Ayodhya matter not to be referred to larger bench; matter not barred by res judicata in Ismail Faruqui case either: SC

Hot Off The PressNews

Supreme Court: Nirmohi Akhara, one of the parties in the Ayodhya  title dispute case, has filed an application in the Supreme Court, opposing the Centre’s plea to return to the original owners excess land acquired around the disputed Ram Janmabhoomi-Babri Masjid site.

“The government cannot get back the land to give it to who they want. Ram Janmabhoomi Nyas cannot be given a majority of the land,”

The lawyer appearing for the Akhara said that the acquisition of the land by the government had led to the destruction of several temples managed by the Akhara. The Akhara has pleaded to the court to decide the title dispute.

The central government had in January this year filed a petition seeking modification of the court’s 2003 order to allow it to return the “excess/superfluous land” out of the 67.703 acres acquired in Ayodhya to its original owners including Ram Janmabhoomi Nyas. The government had been directed by the court to maintain “status quo” with regard to entire land including the non-disputed acquired areas.

(Source: ANI)

Also read

Ayodhya Dispute to be settled by a ‘confidential’ Court monitored mediation; No Gag order passed

Ram Mandir Babri Masjid| Ayodhya matter not to be referred to larger bench; matter not barred by res judicata in Ismail Faruqui case either

Hot Off The PressNews

Supreme Court: The bench of SA Bobde and Abhay Manohar Sapre has appointed Senior Advocate PS Narsimha  as a mediator in all the matters relating to BCCI pending before the Court. Narsimha was the amicus curiae in the said matter. before being appointed as the mediator.

Narsimha will hear grievances of state associations regarding the non-release of funds. He will then make recommendations to CoA. and make recommendations to the Committee of Administration.

The Court said that if any party is not satisfied with the outcome of the mediation, it can come to Court.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: The 5-judge bench of Ranjan Gogoi, CJ and SA Bobde, Dr. DY Chandrachud, Ashok Bhushan and SA Nazeer, JJ has referred the Ram Janmabhoomi-Babri Masjid land dispute case, famously known as the Ayodhya Dispute, to a Court-monitored Mediation. It said:

“Notwithstanding the lack of consensus between the parties in the matter we are of the view that an attempt should be made to settle the dispute by mediation.”

Stating that there is no legal impediment to making a reference to mediation for a possible settlement of the disputes arising out of the appeals, the Court said that whether Order 1 rule 8 CPC and Order XXIII rule 3-B of the CPC would apply in the event parties arrive at a settlement/compromise in the mediation proceedings is a matter left open to be decided at the appropriate stage.

Panel of Mediators:

  1. Justice Fakkir Mohamed Ibrahim Kalifulla, Former Judge, Supreme Court of India – Chairman
  2. Sri Sri Ravi Shankar – Member
  3. Shri Sriram Panchu, Senior Advocate – Member

The members are at liberty to co-opt other members of the Panel.

Where and how:

The proceedings will take place and Faizabad, Uttar Pradesh. The Court directed the Uttar Pradesh government to provide mediators all the facilities in Faizabad. Mediators can seek further legal assistance as and when required. The proceedings will be held in-camera.


The mediation process is expected to commence within a week and the mediators have to send a report of the progress of the mediation to the Court within four weeks of the commencement of the process.

Confidentiality of the proceedings:

The Court said that the mediation proceedings should be conducted with utmost confidentiality so as to ensure its success which can only be safeguarded by directing that the proceedings of mediation and the views expressed therein by any of the parties including the learned Mediators shall be kept confidential and shall not be revealed to any other person. The Court further said:

“while the mediation proceedings are being carried out, there ought not to be any reporting of the said proceedings either in the print or in the electronic media. However, we refrain from passing any specific order at this stage and instead empower the learned mediators to pass necessary orders in writing, if so required, to restrain publication of the details of the mediation proceedings.”

In it’s order dated 26.02.2019, the Court has said that:

“the mediation suggested is only to effectively utilize the time of eight weeks that would be taken to make the cases ready for hearing.”

Reserving it’s order on 06.03.2019, the Court had said:

“Even if there is one percent chance, it should be explored.”

[M. Siddiq v. Mahant Suresh Das, 2019 SCC OnLine SC 342, order dated 08.03.2019]

Hot Off The PressNews

Supreme Court: The 5-judge bench of Ranjan Gogoi, CJ and SA Bobde, Dr. DY Chandrachud, Ashok Bhushan and SA Nazeer, JJ has said that it will ‘soon’ pass the order on whether the Ayodhya dispute will be referred to a Court appointed mediation for ‘permanent solution’.

The Court has asked the parties to suggest the name of a mediator or a panel of mediators. It said:

“There need not be one mediator but a panel of mediators. When the mediation is on, it should not be reported on. It may not be a gag but no motive should be attributed to anyone when the mediation process in on.”

Considering the possibility of ‘healing relations’, the Court said:

“Even if there is one percent chance, it should be explored.”

In it’s order dated 26.02.2019, the Court has said that:

“the mediation suggested is only to effectively utilize the time of eight weeks that would be taken to make the cases ready for hearing.”

(With inputs from ANI)

Case BriefsSupreme Court

Supreme Court: In the issue relating to custody of a child where the question was as to whether the Counsellor’s report furnished in the course of mediation proceedings or the Mediator’s report in case of mediation, when the process fails, can be used by either of the parties during trial, the bench of Abhay Manohar Sapre and UU Lalit, JJ held:

“Complete adherence to confidentiality would absolutely be correct in normal matters where the role of the court is purely of an adjudicator. But such an approach may not essentially be conducive when the court is called upon and expected to discharge its role in the capacity as parens patriae and is concerned with the welfare of a child.”

On general rule of confidentiality in Mediation:

It is true that the process of mediation is founded on the element of confidentiality. In the process, the parties may make statements which they otherwise they would not have made while the matter was pending adjudication before a court of law. Such statements which are essentially made in order to see if there could be a settlement, ought not to be used against the maker of such statements in case at a later point the attempts at mediation completely fail. If the statements are allowed to be used at subsequent stages, the element of confidence which is essential for healthy mediation/conciliation would be completely lost.

On exception in issue relating to custody of a child:

The Court said that in order to reach correct conclusion, the court may interview the child or may depend upon the analysis of an expert who may spend some more time with the child and gauge the upbringing, personality, desires or mental frame of the child and render assistance to the court. It is precisely for this reason that the element of confidentiality which is otherwise the basic foundation of mediation/conciliation, to a certain extent, is departed from in Sub-Rule (viii) of Rule 8 of the Family Court Rules.

Statements made by the parents during the course of mediation may not be relied upon on the ground of confidentiality but natural responses and statements made by the minor to the Counsellor would certainly afford a chance to decide what is in the best interest of the child as a child may respond naturally and spontaneously in its interactions with the Counsellor, who is professionally trained to make the child feel comfortable. Stating that record of such interaction may afford valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction, the Court said:

“The intention is clear that the normal principle of confidentiality will not apply in matters concerning custody or guardianship issues and the Court, in the best interest of the child, must be equipped with all the material touching upon relevant issues in order to render complete justice.”

[Perry Kansagra v. Smriti Madan Kansagra, 2019 SCC OnLine SC 211, decided on 15.02.2019]

ADR Competition AnnouncementsLaw School News

The Alternative Dispute Resolution Cell (ADR Cell) established under the auspices of National Law University, Jodhpur, India is pleased to announce “The First NLUJ Deal Mediation Competition, 2019” from March 8 to 10, 2019, in association with  Centre For Mediation And Conciliation (an initiative of the Bombay Chamber of Commerce and Industry), supported by Nishith Desai Associates, Indian Arbitration Forum, The Negotiation Academy and Global Academy for Advocacy in Dispute Resolution and Bridge Mediation, and knowledge and research partners, SCC Online and Eastern Book Company.

Deal mediation is a format that will help students understand interest-based negotiation in a new and unique way. Deal Mediation is most aptly described as “mediation without a dispute”. The role of a mediator in Deal Mediation is not just to facilitate conversation and encourage interest-based negotiation, but to be more pro-active and employ the process of mediation to maximize value for the Negotiators and those whom they represent. The Negotiators will have the opportunity to test their negotiation skills in a non-conflict environment to secure their interests and at the same time negotiate the finer details of the deal to prevent future conflict and preserve relationships.


In order to encourage maximum learning, registrations will be invited from Law universities/colleges/institutes around the country for a maximum of two teams consistingof three students each who will be required to fulfil the role of Client, Counsel and Mediator in one preliminary round each. After three preliminary rounds, the four teams with the highest cumulative team scores in each category will qualify to the semi finals as either a negotiation team or a mediation team or both.


Awards will be given to Winners and Runners-up in the Mediator and Negotiation category and, Best team, Best Mediator and Second Best Mediator, Best Client-Counsel pairand Second Best Client-Counsel pair in the preliminary rounds.

Prizes include internships with Nishith Desai Associates and Centre for Mediation and Conciliation, cash awards upto INR 40,000, trophies and books.

Winners would also be entitled to discounts on ADR courses conducted by The Negotiation Academy.


Participation in this tournament is through invitation only, but any Law universities/colleges/institutes may apply for an invite by sending an e-mail to expressing their desire to participate. Participation shall be limited to 32 teams and allotment of a second slot to interested universities shall be based on the first round of registration.

Registration Fee

The registration fee per participant is set at INR 3000 which is inclusive of accommodation, food and a pre-competition training session pertaining to Deal Mediation.

Important Dates

Deadline for registration: February 8, 2019

Last date for payment of fee: February 8, 2019

Release of Mediation Problems: To be announced

Contact Details

Official correspondence:

ADR Cell e-mail:

Tournament co-ordinators:

Ms. Varsha Manoj: +917073047788

Ms. Prakrati Shah: +919610169968

Mr. Kushagra Agarwal: +917568842587

AchievementsLaw School News

ILS hosted the second edition of INTERCESSIONIS-ILSCA PACT Community Mediation Competition on 6th and 7th January 2019. It is the only Community Mediation competition in the country providing the participants with an opportunity to test their core mediation skills and experience model community mediation sessions through rounds of competitive simulations.

  • Winner: Aachman Shekhar, NALSAR, Hyderabad
  • Runner Up: Rahul Naresh, SLS Hyderabad
  • Winner: Anushka Paliwal and Taneesha Paranjape, SLS Pune
  • Runner Up: Akshita Totla and Supriya Julka, Nirma University.
ADR Competition AnnouncementsLaw School News

TNNLU NMAC is one of the few competitions focusing on the hybrid variety of Mediation and Arbitration (Med-Arb) under the umbrella of Alternative Dispute Resolution. In this competition, the parties will initially try to resolve their disputes through mediation based on an agreed covenant and then through arbitration. This agreed covenant will transform into a binding arbitration agreement for the arbitration session. Hence, the participating students are expected to participate and compete against each other in both Mediation and Arbitration sessions.
Participation in the competition is limited to 24 teams based on ‘First come First serve.’

The competition will take place in the following rounds-

  • The Preliminary Rounds
  • The Semifinal Rounds
  • The Final Round.

Venue: TNNLU campus, Tiruchirappalli, Tamil Nadu.

Events Important Dates
Commencement of provisional registration 07.01.19
Deadline for provisional registration 25.01.19
Release of Problem, Rules and Regulations 13.01.19
Deadline for the release of clarifications 20.01.19
Deadline for registration along with payment of fee & sending the soft copy of DD/Net Banking Receipts online 02.02.19
Deadline for sending the fully filled registration form and the hard copy of DD/Net Banking Receipts 06.02.19
Deadline for the soft copy of Arbitration Memorials 22.02.19
Deadline for the hard copy of Arbitration Memorials 27.02.19
Inauguration 08.03.19
Valedictory Ceremony 10.03.19

For registration, click HERE

Note: Registration should be in a team of three (mediator/arbitrator, counsel and client).


AchievementsLaw School News

In what seems to be turning into a great year for NLSIU, Bangalore at ADR tournaments, the team consisting of Nikita Garg, Kshitij Sharma, Saarthak Jain, and Aman Vasavada have won the IBA-VIAC CDRC VIENNA Mediation and Negotiation Competition 2018. With this, NLSIU becomes the only team to have won this competition twice, making it an even bigger feat!


Legislation UpdatesRules & Regulations

The Central Government on 03-07-2018 has, in exercise of the powers conferred by sub-section (2) of Section 21A read with sub-section (1) of Section 12A of the Commercial Courts Act, 2015 (4 of 2016), notified the  Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018.


Key Highlights of the Rules are as follows :—

Initiation of mediation process —

(1) A party to a commercial dispute needs to make an application to the Authority as per Form-1 in Schedule-I, either online/by post/by hand, for initiating mediation process along with Rs 1000 as fees payable to the Authority by demand draft/ online;

(2) The Authority shall, having regard to territorial and pecuniary jurisdiction and nature of commercial dispute, issue notice, as per Form-2 in Schedule-I through registered/speed post and electronic means, i.e., e-mail and like to the opposite party for appearing and giving consent to participate in mediation process on a date not beyond ten days from issue of notice.

(3) If no response is received from opposite party either by post/e-mail, the Authority shall issue final notice as specified above.

(4) Where notice under sub-rule (3) is unacknowledged or opposite party refuses to participate in mediation process, the Authority shall treat the process to be a non-starter and make report as per Form 3 in Schedule-I and endorse it to both the parties.

(5) Where opposite party, after receiving the notice seeks further time for appearance, the Authority may, fix an alternate date not later than 10 days from date of receipt of such request.

(6) Where opposite party fails to appear on fixed date fixed, the Authority shall treat the mediation process to be a non-starter and make report as per Form 3 in Schedule-I and endorse the same to both the parties.

(7) Where both parties appear and give consent to participate in the mediation process, the Authority shall assign the commercial dispute to a Mediator and fix a date for appearance before the said Mediator.

(8) The Authority shall ensure that the mediation process is completed within 3 months from receipt of application for pre-institution mediation unless the period is extended for 2 months with consent of both the parties.


Venue for conducting mediation — The venue for conducting of the mediation shall be premises of the Authority.


Role of Mediator — The Mediator shall, on receipt of assignment, facilitate the voluntary resolution of commercial dispute and assist the parties in reaching a settlement.


Representation of parties — A party to a commercial dispute has to appear before the Authority/Mediator, either personally or through duly authorised representative/Counsel.


Procedure of mediation —

(1) The mediation shall be conducted as per the following procedure-

(i) At the commencement of mediation, the Mediator shall explain the mediation process to the parties;

(ii) The date and time of each mediation sitting should be fixed by Mediator in consultation with the parties.

(iii) The Mediator, during course of mediation, may hold meetings with parties jointly/separately;

(iv) The applicant/opposite party may share settlement proposals with the Mediator in separate sittings with specific instruction as to what part can be shared with the other party;

(v) Parties to the mediation can exchange settlement proposals with each other during mediation sitting either orally/in writing;

(vi) During the mediation process, Mediator has to maintain confidentiality of discussions made in separate sittings with each party and only the facts which a party permits can be shared with other party;

(vii) Once both parties reach to a mutually agreed settlement, same shall be reduced in writing by Mediator and signed by the parties and Mediator as per Form-4 in Schedule-I;

(viii) Mediator shall provide the settlement agreement, in original, to all the parties and also forward a signed copy to the Authority; and

(ix) Where no settlement is arrived between the parties within time specified in sub-section (3) of Section 12A of the Act or where Mediator is of the opinion that the settlement is not possible, the Mediator needs to submit a report to the Authority, with recorded reasons in writing, as per Form-5 in Schedule-I.

(2) The Authority/Mediator, shall not retain the hard/soft copies of documents exchanged between parties or submitted to Mediator or any notes prepared by the Mediator beyond 6 months other than application for mediation, notice issued, settlement agreement and failure report.


Parties to act in good faith — All the parties to a commercial dispute should participate in the mediation process in good faith with intention to settle the dispute.


Confidentiality of mediation — The Mediator, parties or their authorized representatives/Counsel shall maintain confidentiality about the mediation and, the Mediator shall not allow stenographic/audio/video recording of the mediation sittings.


Maintenance and publication of mediation data —

(1) The District Legal Services Authority (DLSA) shall forward the detailed data of the mediation dealt by it under the Act to the State Legal Services Authority (SLSA).

(2) The SLSA shall, maintain data of all mediations carried out by it/under its jurisdiction and publish the same, on quarterly basis, on its website as per Form-6 in Schedule-I.


Mediation Fee — Before commencement of the mediation, the parties to commercial dispute shall pay to the Authority a one-time mediation fee, to be shared equally, as per the quantum of claim as specified in Schedule-II.


Ethics to be followed by Mediator —

The Mediator shall-

(i) uphold the integrity and fairness of the mediation process;

(ii) ensure that parties in the mediation are fairly informed and have adequate understanding of procedural aspects of the mediation process;

(iii) disclose any financial interest/other interest in subject-matter of the commercial dispute;

(iv) avoid any impropriety, while communicating with the parties;

(v) be faithful to the relationship of trust and confidentiality reposed in him;

(vi) conduct mediation related to resolution of a commercial dispute, in accordance with applicable laws for time being in force;

(vii) recognise that mediation is based on principles of self-determination by parties and that the mediation process relies upon ability of parties to reach a voluntary agreement;

(viii) refrain from promises/guarantees of results;

(ix) not meet the parties, their representatives/counsels or communicate with them, privately except during mediation sittings in premises of the Authority;

(x) not interact with media or make public the details of the commercial dispute case, being mediated by him or any other allied activity carried out by him as a Mediator, which may prejudice interests of parties to the commercial dispute.

[No.A-60011(06)/20/2016-Admin-III(LA) — G.S.R. 606(E)]

Ministry of Law and Justice


William E. Gladstone rightly said, Justice delayed is justice denied. This means that if the principle of timely justice is not adhered to, it is tantamount to a complete negation of justice. This problem is prevalent in the Indian judicial system where there is a backlog of nearly 27 million pending cases out of which, approximately 55,000 comprise of disputes relating to divorce.[1] This impediment in obtaining timely justice has resulted in alternate dispute resolution mechanisms such as negotiation, mediation, arbitration and conciliation gaining popularity due to their speedy nature of settling disputes. These forums provide a platform for parties to seek relief without involving litigation, thus literally “outside a courtroom”.

Mediation has emerged as the most widely accepted dispute resolution mechanism for settling matrimonial disputes. The problem arises when these include cases of domestic violence. While using mediation to resolve disputes of such nature, there are two opposing ideologies that exist in society. The advocates of mediation hold mediation to be a favourable mechanism as it safeguards family relationships; more specifically children from having to experience the severities of the traumatic process ordinarily attached to a typical divorce and also provide speedy justice. Whereas the critics of mediation hold mediation to be ineffective as the wrongdoer escapes without being punished through the State’s orderly penal apparatus.

There are several advantages attached to mediation of matrimonial affairs such as confidentiality, cost effectiveness, informal procedures, power of control, full freedom of parties to reject the outcome, mutuality, etc. The most attractive and indispensable feature is that it follows the principle of timely justice.

With reference to domestic violence cases, Section 12 of the Protection of Women from Domestic Violence Act, 2005 clearly lays down that a magistrate must dispose of a case under this Act within 60 days. However, this provision is rarely complied with. An Advocate, Dinesh Sharma stated, “Cases of such nature are never wrapped up in the 60 days period unless parties reach a compromise.”

The main reason for this “delayed justice” is the judge-population ratio in India. As per the Law Commission Report, there are only 17 Judges per one million people in comparison to USA’s 107 per one million people. Justice V.V. Rao stated, “It would take 320 years for the Indian judiciary to clear millions of pending cases.” Looking at the current condition of the Indian courts, it would not be incorrect to assume that alternate dispute resolution forums like mediation might be a more viable option for parties to seek relief.

The use of mediation in India is promulgated under the Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure, 1908 (CPC). Section 30 of the Arbitration and Conciliation Act states that an “Arbitral Tribunal may use mediation to encourage settlement of disputes”. Section 89 CPC states that “courts may refer the parties for mediation if it appears that there exists an element of settlement”. As it can be inferred from the title, this Code only deals with “civil” matters. Thus, criminal matters are removed from the purview of mediation. So where does domestic violence fit in mediation?

Section 498-A of the Penal Code, 1860 (IPC) deals with matters of domestic violence. Under Section 320 of the Code of Criminal Procedure (CrPC) this is a non-compoundable offence where no compromise is allowed to be made. Offences of this type are of such serious nature that even courts cannot compound them. However, in India courts have time and again referred parties to mediation in resolving matrimonial disputes regardless of the nature of the offence. The Supreme Court in 2013 sanctioned all criminal courts to adopt mediation, with specific regard to cases under Section 498?A IPC.

The judiciary has shown no reluctance in adopting mediation to settle matrimonial disputes, even in criminal cases:

In Mohd. Mushtaq Ahmad v. State[2], the wife filed a divorce petition alongside an FIR against the husband under Section 498?A IPC after disputes arose between the couple subsequent to birth of a girl child. The Karnataka High Court directed the parties to mediation under Section 89 CPC. The matter was settled amicably through mediation after which the wife decided to quash the FIR. The Court allowed this stating, “The court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice.”

In Gurudath K. v. State of Karnataka[3], the facts are identical to the case above. Here the court stated, “Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably … Section 320 CrPC would not be a bar to the exercise of power of quashing of FIR or criminal complaint in respect of such offences.” Thus, the court allowed for the offences to be compounded on coming to the conclusion that the wife was under no threat or coercion for the same.

The court’s intention to settle matters as amicably as possible is clear. The intention of the court matches the ideology of the advocates of mediation, which is to safeguard family relationships and provide speedy justice.

Due to this move of the Indian courts, the accused are less apprehensive of being convicted in cases of domestic violence. This is where critics of mediation come in, who hold mediation to be ineffective as the wrongdoer escapes without being punished. Even though the law clearly debars offences of such nature from being compounded, the judiciary has time and again ignored this provision in the “interest of justice”. Besides being a boon to the accused, this is also a corresponding threat to the society at large to have criminals roaming free on the streets.

As per India’s National Crime Records Bureau, the number of domestic violence cases filed increased from 50,703 in 2003 to 118,866 in 2013.[4] This is an increase of 134% within the span of 10 years. Jawaharlal Nehru once said “You can tell the condition of a nation by looking at the status of its women.” For many years, India has been a patriarchal society. Women have always been mistreated and looked upon as a liability. Section 498-A was enacted for the upliftment of women in this patriarchal society. The seriousness of this offence is denoted in the statute itself by making it a non-bailable and non-compoundable one punishable with up to 3 years imprisonment.

The critics of mediation believe that the seriousness of such crimes should not be undermined by simply pardoning the accused and settling matters amicably. The accused must be sentenced to imprisonment so they are reformed before entering the society again. In the cases we have seen above, the victims of domestic violence have agreed to forgive the accused and settle the matters amicably. But should the State acquit the accused merely because the victim’s approval has been affirmed?

In K. Srinivas Rao v. D.A. Deepa[5], the Court held:

44. … though offence punishable under Section 498-A IPC are not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation…. The Judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law…. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest.

It is quite evident from this holding that courts have not tuned a blind eye toward the fact that this offence is non-compoundable. The Court’s actions are done in good faith to save parties from the hectic court procedures. The Court has used the word “appropriate cases” in the first line, which means that all cases of such nature will not be referred to mediation. It is only those ones that the court deems to be appropriate to be sent for mediation.

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.[6] the Supreme Court clarified that “even when a case is referred to a mediator the court retains its control and jurisdiction over the matter and the mediation settlement will have to be placed before the court for recording the settlement and disposal”. This shows the Court’s efforts in attempting to avoid mediation to be carried out arbitrarily.

There should be no strict guidelines for which cases are to be referred to mediation. Cases should not be divided into the category of compoundable and non-compoundable. What is really essential is to distinctly look at the facts of each case individually to see whether mediation would be a viable option for the parties or not. Domestic violence cases cannot be decided through precedents unless the facts appear to be identical. Each case is of different magnitude and must be judged by scrutinising the facts of the case and discomfort caused to the victim carefully. The Indian courts are headed in the right direction in dealing with cases of this nature.

* 3rd year student, BA LLB (Hons.), Jindal Global Law School, Sonepat.
[1] Pandey, V. (2010), 55,000 couples waiting for divorce in India/Latest News & Updates at Daily News and Analysis, available at <> (accessed on 3-10-2017).

[2]  (2015) 3 AIR Kant R 363.

[3]  Criminal Petition No. 7258 of 2014, order dated 20-11-2014.

[4] Pandey, G.. (2014), India “fails” victims of abuse, BBC News, available at <> (accessed on 7-10-2017).

[5]  (2013) 5 SCC 226, 241-242 : AIR 2013 SC 2176.

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of P. Somarajan, J. decided an application filed under Section 482 CrPC, wherein the Court quashed the criminal proceedings pending against the accused persons.

The accused persons were booked for offence under Sections 323, 324, 325, 506 (1), 509, 377, 354, 498 A, 294 (b) and 34 IPC. Accused No. 1 was the husband of the complainant while the other accused persons were her in-laws. The present application was filed to quash the proceedings going on against the accused persons in the criminal case registered for offences as mentioned hereinabove.

The High Court perused the record and found that in the final report it was clearly shown that the parties had arrived at a genuine settlement in mediation exercise as held between them. No bad antecedents were reported against the accused persons. Accused No. 1 and the complainant were living together as husband and wife. In the said circumstances, the Court held that stretching the criminal proceedings further would be a futile exercise and no purpose would be served. Therefore, the criminal proceedings pending against the accused persons under the criminal case referred to above, were quashed. [Dileep v. State of Kerala, 2018 SCC OnLine Ker 1457, order dated 27.4.2018]

Case BriefsHigh Courts

Delhi High Court: A Division Bench comprising of Gita Mittal, Actg. CJ and C. Hari Shankar, J., disposed of an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 on grounds of the underlying dispute being settled by a settlement agreement by way of mediation.

The parties had preferred an appeal each, both of which were dealt with the court jointly. The appellant had challenged the order which upheld the arbitral award in favour of the respondent, whereas the respondent had appealed against the order rejecting a petition under Section 9 of the Arbitration Act with regard to the subject matter of the aforesaid arbitral award. The Court on the date of hearing noted that the dispute between the parties appeared to be capable of being resolved through mediation. The parties were, consequently, referred to Mr. Sudhanshu Batra, Sr. Advocate/Mediator at Delhi High Court Mediation and Conciliation Centre. The parties were able to arrive at a settlement and the original settlement agreement was forwarded to the Court. The parties confirmed the correctness of the record received. Additionally, the counsel stated that the parties had acted upon the terms thereof and in view of the settlement in place, nothing survived for further adjudication. Hence, the appeal may be disposed of. The Court, noting the same, disposed of the appeals. [M/s Konka Group Company Ltd v. M/s A2VP Distributors,  2018 SCC OnLine Del 7015, decided on 31.01.2018]

Case BriefsHigh Courts

Delhi High Court: While deciding the instant review petition wherein the issue was raised that whether the either parties during the trial can use the Counselor’s report furnished in the course of mediation proceedings or the Mediator’s report in case the process fails. The petitioner further raised a grievance against the decision of this Court dated 07.02.2017 holding that the reports furnished by the Counselor and Mediator were not confidential and will not fall within the bar of confidentiality. Allowing the petition it was observed by the Division Bench of S. Ravindra Bhat and Yogesh Khanna, JJ., that ‘confidentiality’ is the essence of mediation proceedings, thus constituting “a permanent ‘dark area’ and off limits, till such time appropriate and nuanced clear rules are enacted by legislation or binding norms by way of limited exception”.

As per the facts, the parties to the instant petition are disputants before the Family Court claiming guardianship of the son born to them. In order to resolve the dispute amicably, the parties opted for Mediation which unfortunately failed. The Counselor appointed by the Mediator submitted its report to this Court thereby causing the decision of 07.02.2017. The counsel for the petitioner Prosenjeet Banerjee referring to the Delhi High Court Mediation and Conciliation Rules, 2004, Conciliation Rules of United Nations Commission on International Trade Law (UNCITRAL) and Mediation Training Manual issued by the Supreme Court, argued that mediation is purely a confidential process and anything said or any view expressed by the parties; or documents obtained etc in the course of the process, need not be a part of the mediation report especially when the mediation has failed. It was also argued that the Mediator was not authorised by the Court to refer the dispute to the Counselor. The respondents via Inderjeet Saroop put forth before the Court that the Counselor’s report is only to be referred for the purposes of appreciation of the parties’ stand vis-à-vis their child and urged the Court to exercise it’s parens patriae jurisdiction for the benefit of the child.

Perusing the contentions and facts and referring to the various Rules and Conventions namely UNCITRAL Rules, Arbitration and Conciliation Act, 1996 etc. all highlighting the confidentiality aspect of mediation, the Court observed that a Mediator is not an amicus curiae and therefore the process itself involves a neutral third party who in a non- judgmental fashion acts as a facilitator for the disputants to reach an agreement. Therefore mediation process depends upon maintaining confidentiality at all times till the end of the proceedings, thus a mediator cannot file reports to the Court especially when the process has failed. Mediators cannot involve experts or counselors in the process and if any need arises, the parties must approach the Court to explain requirement and the Court in such cases may use its discretion under Section 12 of the Family Courts Act, 1984. In case a counselor is appointed, a mediator shall not present when the parties are interacting with the counselor and interactions of the counselor and Court should be confidential as well. Based on the observations, the Court directed the Family Court to

disregard the reports of the Mediator and Counselor when it will determine the case upon its merits. It was also held that the said report will not be a subject of debate or argument. [Smriti Madan Kansagra v. Perry Kansagra, 2017 SCC OnLine Del 12156, decided on 11.12.2017]