This is a case summary of Santhini vs Vijaya Venketsh, a 2018 judgement of the Supreme Court by a bench consisting of Honourable Mr. Justice Kurien Joseph who authored the judgement and Honourable Mrs.Justice R. Banumathi. The judgement stands out since the honourable court drew a distinction between the concept of conciliation, mediation and reconciliation in matrimonial disputes.

Facts of the Case

The petitioner Mrs. Santhini approached the Supreme Court under it’s appellate jurisdiction seeking the transfer of her divorce petition from a family court in Kerala to a family court in Tamil Nadu.

The counsel appearing for the respondent Mr. Vijaya Venketesh cited a judgement pronounced by a co-ordinate bench of the SC in the year preceding the instant case. In para 18 of Krishna Veni Nagam V. Harish Nagam, the SC, taking cognizance of the fact that pending transfer petitions hindered the expeditious delivery of justice and added to the Court’s workload, held:

18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:-

i) Availability of video conferencing facility.

ii) Availability of legal aid service.

iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.

iv) E-mail address/phone number, if any, at which litigant from out station may communicate.

The Counsel further brought to the notice of the learned court that by virtue of the judgement cited above, video conferencing was being employed even for inter district appeals.

Judgement

Honourable Mr. Justice Kurian Joseph started his judgement by drawing attention to the 59th report of the law commission which stated that the Courts should make reasonable efforts at settlement before commencement of trials in family matters.

Pursuant to the above recommendations of the law commission the Code of Civil Procedure (hereinafter ‘CPC’ for brevity) was amended in 1976 to provide for a special procedure to be followed in matters pertaining to familial disputes.

But, the courts still stuck to an adversarial approach rather than adopting a conciliatory approach, hence the need for introduction of family courts was felt. As a corollary, the legislature established family courts by virtue of Family Courts Act, 1984 (hereinafter the ‘1984 act’for the sake of brevity)

Justice Joseph goes on to enumerate provisions of the 1984 act which have been succinctly stated hereunder:-

(a) Section 9 mandates the court to endeavour to make settlement .

(b) Section 6 has provisions regarding counsellors, officers and other employees to assist the court in discharge of it’s functions.

(c) Section 12 provides for welfare and medical experts for assistance of the Court.

(d) Section 11 has provisions for in camera trials at the request of any one party.

Furthermore, Justice Joseph went on to enumerate apropos provisions of Hindu Marriage Act, 1955 (hereinafter the ‘1955 Act’ for brevity)

(a) S.23(2) states that it is the duty of the court to make every endeavour to bring about a reconciliation in the parties

(b) S. 23(3) provides for adjournment of hearing for a period of 15 days or less and referring the case to any person that the parties name, or appointed by the court if the parties do not refer a name. The court shall seek a report whether conciliation can be and has been effected and the said report shall be accorded due regard during the disposal of the case.

(c) S.22 has provisions for safeguarding the privacy of the parties in litigation. It prohibits printing or publishing of the court proceedings except the printed judgement of the High Court or the Supreme Court,

(d) S.26 mandated that the court ascertains the wishes of the children before dealing with their custody.

Additionally, Order XXXII A of the CPC lays down rules to be adhered by family courts:

(a) Rule 3 casts a duty on the the court to make efforts for settlement before activating the legal machinery.

(b) Rule 2 provides for in camera trials

(c) Rule 4 provides for assistance of welfare experts

(d) Rule 5 mandates the Court, as far as reasonably possible to inquire into facts alleged by the petitioner and the defendant.

After perusal of all the provisions enumerated, the Court was of the opinion that none of these mandatory procedures were brought to the attention of the court in the Krishna Nagam case. The court further opined that the principal thrust of law in familial matters and instances of marital acrimony is an attempt at reconciliation before processing disputes in the legal framework.

In para 18 of the judgement, the Court makes a very pertinent observation and draws distinction between

conciliation, mediation and reconciliation.

Reconciliation is not mediation neither is it conciliation. No doubt there is conciliation in reconciliation, but the concepts are totally different. Similarly, there is conciliation in mediation but no conciliation in mediation.

In mediation, the role of a mediator is limited to evolving solutions.

In conciliation, the conciliator tries to persuade the parties to arrive at the solution as suggested by him.

In reconciliation, the duty holders have to play a proactive role to assist the parties in order to reach an amicable solution. The duty holders remind the parties of essential family values, the need to maintain cordial relationships both in the interest of husband, wife and the children, as the case may be and make a persuasive effort to make the parties reconcile to the reality and restore relationship, if possible.

Reconciliation is not always restoration of status quo ante, but to arrive at a suggestion acceptable to both the parties.

The raison d’être for the family courts is adopting a conciliatory approach to the case and safeguarding the confidence and confidentiality of the parties. If either of the two are compromised in any way or form, the entire purpose of establishing family courts apart from civil courts at the district level is defeated. In trials done using video conferencing, the confidentiality of the parties is highly vulnerable.

The video footage of the reconciliation process becomes a part of the record in video conferencing, this is in contravention to the established rules.

Physical presence of the parties during the reconciliation process has a significant effect in the reconciliation process.

The honourable Justice propounded that in case any of the three facets enumerated above are compromised the raison d’être behind Family Courts Act 1984, Order XXXII A of the Code of Civil Procedure and the special provisons of the Hindu marriage Act, 1955, namely, Section 22, 23 and 26 is defeated making the idea of establishing special family courts, distinct from district civil courts redundant and superfluous

Hence, the Court in Santhini V Vijaya Venketesh was of the view that the decision of in Krishna Veni Nagam on the aspect of video confrencing in matrimonial disputes needed reconsideration and was hence referred to a larger bench.

The judgement of the 5 judge bench under the ex CJI Mr. Deepak Misra will be dealt with in the next blog.