USES OF MISUSE OF SECTION 498A IN SETTLING THE MATRIMONIAL DISPUTES After joining the profession of law as an advocate of Allahabad High Court, and practicing for few years, I was of the opinion that addition of the provision of Section 498-A in Indian Penal Code, in the year 1983, opened an uncontrolled flow of cases and increased matrimonial disputes many fold. Even for little and petty disputes, this provision has been often misused by the Indian wives. However most of the time, it's use aggravates the dispute to such an extent that it makes the reconciliation, impossible and the prime period of life, miserable. The offence of Section 498-A being cognizable, the Police immediately intervenes and treat not only the husband but also whole family like ordinary criminals. The wive' s side is invariably and rightly presumed to be responsible for this ill-treatment of husband's side by concerned police. Hence, once either the FIR or complaint is filed for the offences of Section 498-A etc., a declared war starts between the two families and they throw the explosives on each other, without caring for future relations; which could have improved after re-conciliation, with in family after the interference and under the influence of elders. The litigation between husband and wife gets momentum and multiplied as soon as a complaint is filed for the offence of cruelty under section 498-A of IPC etc., often coupled with fabricated injuries and false allegations of dowry. In fact both the sides enter into unending civil and criminal cases before the courts having jurisdiction at different places and spoil their relations to the extent of being incurable. The offshoots of these matrimonial disputes sometimes reach up to the apex court, even, when the litigation remains pending at the initial stage of trial. Police, Judge and Media tor We all know that the permanent solution of matrimonial disputes is either re-conciliation through re-union or divorce through separation. Although the efforts of reconciliation is made by Family Courts and various Conciliation Centers running under the supervision of police authorities at different places but their success rate is not impressive at all, for the obvious reasons that they are not experts in the process of conciliation. Moreover the basic difference among the police, the judge and the advocate mediator is that police is trained to frame or prove a charge, a judge is under his pious duty to focus his attention on right or wrong doings of the parties but an advocate-mediator is to confine only on restoration of equilibrium resulting in end of litigation and remain non-judgmental all through. Spare Time for Mediation Almost one and half years back, when the concept of mediation through advocate-mediator was introduced at Allahabad High Court and the court annexed Mediation Centre was established, I got the chance to come across the real issues but false cases. In the beginning of this year 2008, when the Mediation Centre was flooded with the court references, at this hour, for the first time like many of my other mediator friends, I also got the open-opportunity to spend as much time, as I could. So on my own, I decided to spare my free time i.e. Friday evening and Saturday, Sunday afternoon, for the mediation centre. There by I could actually use and devote at least 40-50 Hours in a month for the movement of mediation. This resulted in as an average, at least one successful mediation in a day, to my account. Effect of Jail Hence, I got the ample opportunity to practice the actual process of mediation apart from the bookish knowledge, learnt during various training workshops. To my utter surprise, for the first time I found and felt that misuse of Section 498-A is very-very useful in process of mediation. Actually! Fear of even short term jail as an under trial, put so much pressure on the mind of the husband and his family members, that they suppress their ego for sometime and try to settle the dispute on equal footing. During the mediation sessions. I found that the cases in
which husband had not been arrested and had not been put in jail by that time, he responded better, as the fear of jail persisted in his mind; while the cases in which husband had remained in jail for sometime and had to seek bail thereafter, the response was poor. I felt that such husbands' side responded poorly because firstly the fear of jail had gone out of their mind and secondly they felt insulted and humiliated for being put in jail at the instance of wive's side. Communication by Party To my mind, the mediator's prime duly is to motivate the parties to open up and bring their latent grievances to the fore. One of the skills of the mediator is to increase the ability of the participants to communicate which he can do only be by speaking les and listening more. After careful attentive listening only, a mediator can know the mind of respective parties. Hence he should go deeper into the problem of the parties to diagnose the real factor which actually ailed the relationship. Mediation Centre is like Super Specialty Hospital To my mind, every mediator is required to develop a very-very careful and active listening habit which will enable him to reach at the correct diagnosis. Here I would like to equate the working of the mediation centre with that of super specialty hospital where the highly qualified doctors go for several kind of clinical and pathological tests before prescribing and recommending the treatment. Most of us know that, these highly qualified doctors listen their patients very carefully and attentively. They prepare a case-history also, by which they, not only gains the confidence of patient but also it helps them to reach at the correct diagnosis. The mediator must keep in his mind that if he is able to diagnose the ailment which is commonly known as under line interest of the parties, then it is very likely that he will be able to persuade them to solve their dispute amicably through a compromise agreement. Re-Conciliate/Divorce Usually, only after joint and separate sessions, I am try to diagnose the ailment and under line interest of the parties. After reaching to some conclusion and stages of the ailment, If they seem to me that they can reconciliate the dispute then I try to tell them about the benefits of re-union but if even one of the parties insists for divorce then I tell them the benefits of separation and beginning of new freebird life. I inform rather remind them that being a divorce is no more a taboo in the society. I don't remember that I ever persuaded any party for re-conciliation unless and until they themselves so wished. To my mind, re-conciliation is like putting a patient on medicine and hence it simply controls the ailment in such a manner as a doctor of medicine prescribes daily regular medicines for the ailments like Sugar, Blood pressure and Thyroid. While the divorce is like operating the patient and hence it cures the ailment permanently, in such a manner as a doctor of surgery removes the damaged part of the body. So a mediator will have to work like a doctor of medicine as well as of surgery. Hence his prescription will mainly depend upon his diagnosis. The correct diagnosis of the ailment will lead to proper and effective early-settlement. Treatment to the Problem What techniques will be used in each case, depend upon the situation in each individual case and no cut and dried method can be suggested. However, once the problem is diagnosed, it may not be difficult for a mediator to arrive at a solution. As soon as the diagnosis is made, the treatment will automatically follow. It may be, possible that for the same type of problem two different cases call for two different approaches altogether. The strategy that the mediator will adopt, it will entirely be of his own, depending upon his diagnosis of the problem and his choice of the treatment, as per his perception. Expenses & Cost of Litigation To let the parties realize the expenses, which they have already incurred in litigation and which they will spend in future; is my main tool. After dealing with number less un-successful mediations and some successful ones, I have found that even the lower class families have to spend at least Rs. 25,000/- per year for prosecution and Rs. 50,000/- per year for defence. I am talking of those families who does not have enough money to travel even in sleeper class of Indian Railways. Generally I am able to convince them that the adjudication through litigation will not bring any fruits to them even if they win as finally it may last, at least for 40-50 years. I make them understand that it is only in peaceful participation where the solution to the problem lies. Live Like Friends This present era is the era of rights, and not the duties. The Rights are being propagated not only in India but also all over the world. Hence several laws have been introduced for weaker section of the society including women. Hence a husband will have to be caring otherwise the state will have to come forward to take care of his wife. My favorite tool is Pappu. In most of the cases where a husband shows his desire of re-union, in separate sessions, I tell him frankly that he can live trouble free married life only if he is ready to live like a Pappu at
home. Pappu means like an obedient husband. He will have remain aloof with household decisions and will have to confine himself upto his work place decisions only. In this 21st century he will have to treat his wife as a friend, if he really wants to live a peaceful married life. Here I would like to narrate the often told story of that couple who used to live in perfect harmony and were envy to their neighbours. On being asked, husband told the secret of success of his married life to one of his friends. He told that we have divided our area and jurisdiction. We do not encroach upon the field of each other. I take major decisions my and leave minor decisions to be taken by my wife. My wife does not interfere in my area while I do not interfere in her area. He further told that minor decisions are like - where our children will study, what will be cooked today, which movie will we go to see, what company of T.V., fridge etc we should purchase, some times even who will wash the cloths. He told proudly that I take major decisions and do like any interference from my wife in those decisions. He told that major decisions are such as what will be India's policy to curb terrorism to deal with corruption, price rise, un employment etc, etc. Separate Living In many cases, I found that underline interest of the wife was a separate living and sometimes in separate city also which desire of her, was not being taken care of by her in laws. In these cases the desire of the wife was satisfied only if the husband agreed to keep her with him separately instead of forcing her to live with his parents, in a joint family. The western concept of Family has now imbibed in our country also. Today the family means Husband wife and unmarried children. I was surprised to see that almost in half of the cases which could be settled through re-conciliation, the main condition of agreement was separate living. The main trouble creator in these separate living matrimonial disputes, which I found, was either mother or father of wife and not of the husband. I have not found even a single case where parents of husband ever opposed the separate living of husband and wife. They succumb to their desire of living with their children in their old age so as to make the life of their son workable. Now or Never Sometimes, I have seen that when the parties are very near to compromise, one of the parties seek adjournment on the ground of consultation with some one, who might be having the remote control of the party concerned. At this juncture, I play the tool of now or never. I refuse any kind postponement and plainly tell them that either the compromise will take place now or never. I say that the mediation centre is for those litigants who want to help them-selves. The idea behind such insistence is that once you postpone the mediation process, (especially after joint and separate sessions) the efforts towards settlement which have already been put, are likely to go in vain. This attitude of mine, has helped me in solving many such disputes, which would not have been solved it postponed. False Basis of Complaints I would like to tell all my mediator friends especially the Hon'ble Judges, that during separate sessions invariable almost in all the cases, wives have admitted to me that more than two-third of their allegations are incorrect especially of mar-peet and demand of dowry. These admissions compelled me to think of the plight of the judge who is usually under a constant threat of committing a sin by not doing justice to the parties. Fortunately the advocate- mediator is not having any such kind of mental pressure and hence he has much more freedom to get settled a dispute, than a judge. Mediation Friendly Orders The success of mediation centre not only depends upon the nature and number of cases which are referred by Hon'ble judges but also upon the contents of the order. For example:- (a) The referring orders in which the wife was directed to be paid some reasonable amount through bank draft only after she attends the proceedings at Mediation Centre at least on the first date. (b) The cases of dishonour of cheques in which the accused-applicant was directed to submit one-third of the amount through bank draft in the name of complainant to be paid to him in case of successful settlement. (c) The complaint cases of civil nature in which 5% to 10% of the amount in dispute was directed to be submitted as a pre-condition for mediation. These kinds of orders have helped the mediation process. I would like to call such type of referring orders as mediation-friendly orders. Other Civil Nature Criminal Complaints Last but not the least, I would like to tell Hon'ble judges that criminal complaints of the disputes of civil nature are fittest for being referred to the Mediation Center. I have found that most of these complaints are initially filed at a spur of moment to harass the other side. I can equate this situation with that punishment order of a Major in uniform who asked a soldier to salute him hundred times, when he missed to salute him. But these complaints are never withdrawn by the complainant, due to fear of being subsequently prosecuted for filing
false complaint. I myself was shockingly surprised when such complainants, readily accepted hardly 5% of the amount, they claimed to be cheated by the other side. Hence as per my experience, the success of a mediator in particular and mediation centre in general, mainly depends upon the number and nature of mediation friendly orders. (This speech was delivered at Allahabad High Court Conciliation & Mediation Centre in a workshop held under the Chairmanship of Hon'ble Mr. Justice Sunil Ambwani, Chairman AHCCMC on 15.06.08).
Rajiv Gupta Advocate High Court 5, Ekanki Kunj Colony, Rajapur, Allahabad-211001 Residence : 2622877 Office: 2622977 Mobile No.- 9415214085 e-mail:
[email protected]
