Law Web: Whether domestic violence case can be settled in mediation?

The learned counsel for the petitioner next contended

that the default clause in Ext.P2 does not contemplate the

recovery of `25,00,000/- promised to be paid, but instead

contemplates the continuance of the proceedings. The counsel

further submitted that since the petitioner herein has expressed

his inability to comply with the settlement, the default clause

would come into operation and in such a case, the court cannot

make an order based on the settlement and can make an order

only after sufficient enquiry is carried out. Without conducting

any enquiry, the court below went wrong in ordering the

petitioner to pay a sum of `25,00,000/-, argued the counsel. I

cannot subscribe to the said argument. Once a settlement has

been arrived at between the parties in a lis, that concludes the

dispute resolved in the settlement and the parties are bound by

it. Based on the settlement arrived at the mediation, the parties

cannot be directed to invoke the original jurisdiction of the court

to ensure that the compromise is worked out. Such a procedure

would be against the spirit of the mediation process itself. In

Salkia Businessmens' Association (supra), the Apex Court has

held that viewing breach of the terms of the compromise as a

matter of mere contract between the parties and disregarding it

has a disastrous effect on rule of law. As stated already, the

Magistrate exercising jurisdiction under the DV Act has the power to refer the matter before it to mediation, record the compromise and pass an order in terms of the settlement. The order so passed in respect of the matters that fall within Sections 18 to 22 of the DV Act can be enforced in accordance with the law. As far as the settlement that falls outside the ambit of Sections 18 to 22 is concerned, the parties are bound to follow the terms of the settlement. {Para 13}

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(CRL.) NO. 390 OF 2020

MATHEW DANIEL Vs LEENA MATHEW,

PRESENT

DR. JUSTICE KAUSER EDAPPAGATH

Dated: 16th day of August, 2022

This original petition has been filed to quash Ext.P3 order

passed by the Judicial First-Class Magistrate Court, Kalamassery

(for short, ‘the court below) in MC No.38/2018 pursuant to the

settlement arrived at in mediation.

2. The petitioner is the husband of the respondent. The

respondent filed an application under Section 12 of the Protection

of Women from Domestic Violence Act, 2005 (for short, the DV

Act) against the petitioner claiming various reliefs under Sections

18, 19, 20 and 22. The court below referred the case to

mediation. The entire dispute between the parties was settled at

the mediation. Ext.P1 mediation agreement dated 6/2/2019 was

executed between the petitioner and the respondent. As per the

terms of Ext.P1, the petitioner and the respondent mutually and

amicably consented to a divorce. It was further agreed that the

shared household which stood in the name of the petitioner

would be sold within six months for mobilizing money to pay

maintenance and other monetary benefits to the respondent and

the sale proceeds would be shared equally between the petitioner

and the respondent. Initially, the court below passed an interim

order restraining the petitioner from alienating the property. It

was in force till 12/11/2018. Since the matter was settled at the

mediation, and it was agreed to sell the shared household to the

third party and to share the sale proceedings, the injunction order

was not extended. But the property could not be sold as agreed.

Therefore, both parties requested the court below to refer the

matter again for mediation. Accordingly, the court below again

referred the case for mediation. At the second mediation, another

mediation agreement (Ext.P2) was entered into between the

parties on 22/1/2020. As per the said mediation agreement, the

parties mutually and amicably consented to divorce and further

the petitioner agreed to pay a sum of `25,00,000/- within six

months to the respondent to settle the entire dispute.

Thereafter, the petitioner filed an affidavit at the court below on

9/7/2020 stating that he was compelled to sign the mediation

settlement agreement without understanding the consequences

of its terms. He sought permission to withdraw from the said

settlement. The court below after hearing both sides passed

Ext.P3 order whereby the petitioner herein was directed to pay a

sum of `25,00,000/- in terms of the final settlement of all the

disputes between the parties as agreed in Ext.P2. The mediation

agreement dated 22/1/2020 was made part of the Ext.P3 order.

Later, the court below made a correction regarding the date of

Ext.P2 agreement in Ext.P3 order as per Ext.R1 (a) order.

Ext.R1(b) is the corrected order of Ext.P3. The court below in

Ext.P3/Ext.R1(b) found that the contention of the petitioner that

he had signed the mediation agreement without understanding

the consequences of its terms is devoid of merits and that the

parties are bound by Ext.P2 mediation agreement. The petitioner

seeks to set aside Ext.P3/Ext.R1(b) order in this original petition.

3. I have heard Sri. Sreelal Warriar, the learned counsel

for the petitioner and Smt. Sikha G.Nair, the learned counsel for

the respondent.

4. The learned counsel for the petitioner Sri.Sreelal

Warriar submitted that the DV Act does not contain any provision

to refer the matter to mediation. Drawing my attention to Section

28(1) of the DV Act, the learned counsel submitted that the

proceedings under Sections 12 and 23 of the DV Act are governed

by the Code of Criminal Procedure (for short ‘Cr.P.C’) and, thus,

Section 89 and Order XXIII Rule 3 of the Code of Civil Procedure

(for short ‘CPC’) which provides for settlement of the dispute

through alternative dispute resolution mechanism and

compromise of the suit is inapplicable to the proceedings under

the DV Act. The counsel further submitted that the terms of the

settlement in Ext.P2 are unconscionable and incapable of

performance. The counsel also submitted that the court below

went wrong in directing the petitioner to pay a sum of

`25,00,000/- to the respondent without satisfying the condition in

Ext.P2 that a joint petition for divorce by mutual consent must be

filed by the parties. Ext.P3 order does not satisfy the

characteristics of an order required to be passed by a reference

court pursuant to a mediation settlement, added the counsel. On

the other hand, the learned counsel for the respondent Smt.Sikha

G.Nair submitted that the contention of the petitioner that he had

signed the mediation agreements without understanding the

consequences is baseless and devoid of merits. The learned

counsel further submitted that after entering into a settlement,

one of the parties cannot withdraw from it unilaterally. The

counsel also submitted that the petitioner voluntarily executed

Exts.P1 and P2 agreements fully understanding its contents and,

as such, he is bound by its terms.

5. The first and foremost argument canvassed by the

learned counsel for the petitioner is regarding the jurisdiction of

the Magistrate Court dealing with the application filed under the

provisions of the DV Act to refer the matter to mediation. The

learned counsel submitted that the proceedings under Sections

12 and 23 of the DV Act are governed by Cr.P.C and as such, the

provisions of Section 89 and Order XXIII Rule 3 of CPC are not

applicable to a proceeding under the DV Act. The learned

counsel relied on two decisions of the Single Benches of this

Court in Shiyas K.B. v. Manoj Paul and Another [ILR 2018 (2)

Kerala 847] and Sivarajan v. Subash and Another (2020 (1)

KHC 659) in support of his submission.

6. The very objective of the DV Act is to protect the

women against the violence that occurs within the family and for

matters connected therewith. The DV Act, therefore, conceives a

scheme of protective measure with the object to protect women.

The statement of objects and reasons of the Act record that the

civil law does not address the phenomenon of domestic violence

and therefore, a law be enacted to provide a remedy in civil law

for the protection of women from being victims of domestic

violence. Thus, the purpose of enacting the law was to provide

civil remedies to a woman who is subjected to domestic violence.

Apart from the statement of objects and reasons, various

provisions contained in the DV Act make it clear that

predominantly the rights and remedies created under the Act are

of civil nature. Various kinds of reliefs which can be obtained by

the aggrieved person under Sections 18 to 22 of the Act are of

civil nature. At the same time, when there is a breach of such

orders passed by the Magistrate, Section 31 terms such a breach

to be a punishable offence. The reliefs under Sections 18 to 22

can be sought in any legal proceedings pending before a civil

court, a family court or a criminal court as well (Section 26). All

these reliefs that can be granted by the Magistrate/Court are

meant for the welfare and well-being of the women. When the

welfare statute is made with the single focus of the protection of

women, such an Act must be treated as remedial to protect the

women.

7. The Apex Court in Indra Sarma v. V.K.V.Sarma

(2013 (14) SCALE 448) examined the scope of the DV Act and

held that it was enacted to provide a remedy in civil law for the

protection of women from being victims of domestic violence. The

Division Bench of the Delhi High Court in Nidhi Kaushik v.

Union of India [(2013) 203 DLT 722] has held that the

proceedings under Sections 12 and 18 to 23 of the DV Act are

purely civil in nature. In Vijaya Baskar v. Suganya Devi [2010

(4) KLT OnLine 1022 (Mad.)], the Madras High Court examined the

scope of the DV Act and held that the term 'civil law' used in the

statement of objects and reasons of the Act is not an empty

formality and would exemplify and demonstrate that the

proceedings at the first instance should be civil in nature. This

Court in Saramma Shyju v. Shyju Varghees and Others

(2011 (3) KHC 235) took the view that since the proceedings

under the DV Act are civil in nature, an application for

amendment of the petition is maintainable. The Apex Court in

Kunapareddy @Nookala Shanka Balaji v. Kunapareddy

Swarna Kumari and Another (2016 KHC 6400) considered the

nature of the proceedings under the DV Act and observed that

the purpose of enacting the DV Act was to provide a remedy in

the civil law for the protection of women from being victims of

domestic violence and to prevent the occurrence of domestic

violence in the society. It was further observed that it is for this

reason, that the scheme of the Act provides that in the first

instance, the order that would be passed by the Magistrate, on a

complaint by the aggrieved person, would be of a civil nature and

if the said order is violated, it assumes the character of

criminality. This Court recently in Neethu v. Trijo Joseph (2022

(4) KHC 384) considered the nature of proceedings under the DV

Act. Examining the various decisions of the Apex Court and the

High Courts, it was held that the kinds of reliefs which can be

obtained by the aggrieved person under the DV Act are of civil

nature and hence, the rights and remedies created under the Act

are of civil nature. After holding so, it was held that in a

proceeding under the DV Act, the defence can be struck off for

non-compliance with an order of payment of pendente lite

maintenance. The two decisions relied on by the learned counsel

for the petitioner [Shiyas K.B. (supra) and Sivarajan (supra)]

pertain to the reference made by a Magistrate Court in a case

involving the offence under Section 138 of the Negotiable

Instruments Act. The prosecution under Section 138 of the

Negotiable Instruments Act is a prosecution for criminal offences.

As already stated, the proceedings under the DV Act are of civil

nature and the remedies provided therein are civil remedies.

Therefore, the dictum laid down in the above decisions is not

applicable to the facts of this case.

8. Thus, it can safely be concluded that the DV Act, in

general, is of civil kind and the reliefs thereunder are of civil

nature and the forum prescribed to secure the reliefs is the

criminal court. Merely because the jurisdiction is exercised by the

criminal court/Magistrate court and the provisions of Cr.P.C. are

followed, it does not change the character of the proceedings as

criminal proceedings. The character of the proceedings depends

not upon the nature of the forum, which is invested with the

authority to grant relief, but upon the nature of the relief sought

to be enforced. A proceeding that deals with the right of civil

nature do not cease to be so just because the forum for its

enforcement prescribed by the statute is the criminal court [See

Neethu (supra)]. That apart, Section 28(2) of the DV Act provides

that the court can formulate its own procedure for disposal of an

application under Section 12 or 23 (2) of the DV Act. The

flexibility has been given to the court as the proceedings under

Sections 12 and 18 to 23 provide civil remedies whereas Section

31 provides a criminal offence. The Apex Court in Kunapareddy

(supra) held that Section 28(2) empowers the court to lay down

its own procedure and the Magistrate dealing with the DV Act is

empowered to allow the amendment of the application. Thus, it

is clear that even though Section 28(1) of the DV Act provides

that all proceedings under Sections 12 and 18 to 23 and for the

offence under Section 31 shall be governed by the provisions of

Cr.P.C, the court can still lay down its own procedure while dealing

with the applications under sub-section (1) of Section 12 or while

considering the grant of interim relief or ex parte ad interim relief

orders under sub-section (2) of 23. In view of the nature of the

proceedings under the DV Act and the procedural flexibility

provided under sub-section (2) of Section 28 in deciding the

applications under Section 12 or 23(2), it cannot be said that the

court is bound to strictly abide by the provisions of Cr.P.C in all

cases. In appropriate cases, it would be open to the court to

formulate its own procedure as may be found necessary in the

interest of justice, in which event, the court may not have to rely

upon Cr. P.C [vide Neethu (supra)].

9. The Apex Court in Afcons Infrastructure Ltd. and

Another v. Cherian Varkey Construction Company (P) Ltd.

and Others (2010 KHC 4498) considered the categories of cases

normally suitable for the ADR process including mediation. In

paragraph 19, it was held thus:

"19. All other suits and cases of civil nature in particular the

following categories of cases (whether pending in civil

courts or other special Tribunals/Forums) are normally

suitable for ADR processes :

(i) All cases relating to trade, commerce and contracts,

including

- disputes arising out of contracts (including all money

claims);

- disputes relating to specific performance;

- disputes between suppliers and customers;

- disputes between bankers and customers;

- disputes between developers/builders and customers;

- disputes between landlords and tenants/licensor and

licensees;

- disputes between insurer and insured;

(ii) All cases arising from strained or soured relationships,

including

- disputes relating to matrimonial causes, maintenance,

custody of children;

- disputes relating to partition/division among family

members/ co-parceners/co-owners; and

- disputes relating to partnership among partners.

(iii) All cases where there is a need for continuation of the

pre-existing relationship in spite of the disputes, including

- disputes between neighbours (relating to easementary

rights, encroachments, nuisance etc.);

- disputes between employers and employees;

- disputes among members of societies/ associations/

Apartment owners Associations;

(iv) All cases relating to tortious liability including

- claims for compensation in motor accidents/other

accidents; and

(v) All consumer disputes including

- disputes where a trader/supplier/manufacturer/service

provider is keen to maintain his business/professional

reputation and credibility or `product popularity.

The above enumeration of `suitable' and `unsuitable'

categorization of cases is not intended to be exhaustive or

rigid. They are illustrative, which can be subjected to just

exceptions or additions by the court/Tribunal exercising its

jurisdiction/discretion in referring a dispute/case to an ADR

process."

(Emphasis supplied)

The above-quoted paragraph starts with the sentence “all other

suits and cases of civil nature”. Thus, all cases of civil nature

irrespective of the forum before which it is pending can be

referred to any of the ADR processes. Sub-clause (ii) of

paragraph 19 mentioned above says that all cases arising from

strained or soured relationships, including disputes relating to

matrimonial causes, maintenance etc. are suitable for ADR

processes.

10. For all these reasons, I hold that the Magistrate

exercising jurisdiction under the DV Act has the power to refer the

matter before it to mediation applying the principles of Section 89

of CPC, record the compromise and pass an order in terms of the

settlement applying the principles of Order XXIII Rule 3 of CPC.

11. When the parties settle the dispute at mediation by

signing an agreement detailing the procedure to be followed to

work out the settlement, certainly that agreement is having all

the characteristics of Order XXIII Rule 3 of CPC. The scheme of

Order XXIII Rule 3 is to avoid multiplicity of litigation to enable the

parties to settle their dispute once and for all. When the parties

agreed to settle the dispute in terms of compromise under Order

XXIII Rule 3 of CPC, one of the parties cannot unilaterally

withdraw from the compromise. The Explanation to Order XXIII

Rule 3 makes it clear that only an agreement or compromise

which is void or voidable under the Indian Contract Act could be

considered as not lawful agreement for the purpose of the Rule.

Chapter II of the Indian Contract Act contains provisions relating

to voidable contracts and void agreements. The petitioner has

absolutely no case that the compromise is vitiated by any one of

the grounds enumerated in Chapter II of the Indian Contract Act.

The only contention taken by the petitioner is that he was

compelled to sign the mediation settlement agreement without

understanding the consequences of its terms. So long as there is

no contention that the compromise is vitiated by one of the

grounds enumerated in Chapter II of the Indian Contract Act, the

parties of the compromise are bound to honour the compromise

and the court has the duty to enforce it. The Apex Court in Salkia

Businessmens' Association and Others v. Howrah

Municipal Corporation and Others [(2001) 6 SCC 688] has

held that the terms of the compromise which become part of the

order of the court should be strictly enforced. It was observed

that if the courts are not to honour and implement their own

orders, and encourage party litigants - be they public authorities,

to invent methods of their own to short circuit and give a go-by to

the obligations and liabilities incurred by them under orders of

the court - the rule of law will certainly become a casualty in the

process - a costly consequence to be zealously averted by all and

at any rate by the highest Courts in the States in the country. A

Single Bench of this Court in Mohanan P.K. And Others v.

Sudhakshina Ramakrishnan and Others (2017 (3) KHC 155)

considered the effect of an agreement entered between the

parties in a mediation. It was held in paragraph 8 of the judgment

thus:

“The parties when put their signature by accepting the

terms and conditions in writing, the agreement is having all

the characteristics of the compromise as referred to under

Order XXIII Rule 3 of CPC and no party can withdraw from it

unilaterally. The moment it reaches the court, the court

will have to act upon the compromise and to pass a decree

in terms of the compromise. No doubt, the court

concerned will have to be satisfied with the legality of the

compromise as well as jurisdiction to pass a decree based

on such compromise. Once a settlement has been arrived

at between the parties in relation to the matters in the

suit, that concludes as far as the court concerned in

relation to the dispute resolved in the settlement. It is to be

noted that court recording the compromise is entering into

a satisfaction in terms of Order XXIII Rule 3 of CPC and the

court is not merely acting upon agreement. If one party

wants to withdraw from the agreement, the court has every

power to decide whether the agreement was effected

lawfully or not. If it is proved to the satisfaction of the

court that the dispute has been settled wholly or in part by

a compromise, the court shall pass a decree in accordance

with the agreement. The proviso to Order XXIII Rule 3 has a

significant guidance in this regard. Therefore, if in the case

of denial of an agreement or in the case of unilateral

withdrawal, the court will have to enter a satisfaction

whether there was a compromise of the subject matter of

the suit or not”.

12. Law presumes, prima facie, in favour of

agreement/deed duly executed. Normally, when execution of a

document is either admitted or proved and no disabling factor or

vitiating circumstances is alleged or proved, admission or proof of

signature with necessary formalities, if any, will be proof of

execution with the knowledge of the contents at least prima facie

for the purpose of shifting the burden. The burden of proving the

vitiating factors is on the person who alleges them. The only case

set up by the petitioner is that he was compelled to sign the

compromise agreements, Exts.P1 and P2, without understanding

the consequences of its terms. The said allegation is vague in

nature. There is nothing to substantiate the same. The petitioner

is a literate person. The mediation agreements were signed

before the mediator. The counsel for the petitioner has also

signed in it. The terms of the compromise are lawful. The

petitioner has miserably failed to prima facie satisfy that he

executed the agreements without knowing their consequences.

As stated already, initially an interim injunction was granted by

the court below against alienation of the property in question.

Since the matter was settled at the mediation, the interim order

was not extended and accordingly, the petitioner sold the

property. It was thereafter the petitioner withdrew from the

settlement. It appears that the petitioner has now raised a

contention that he was forced to sign the mediation agreements

without understanding its consequences only to wriggle out of

the compromise. The Division Bench of this Court in Teena

M.Ansari v. Rinoj Eappen (2019 (4) KHC 593) has held that

after entering into a settlement through the process of mediation

and after the court as well as the parties have acted upon the

settlement, one of the parties cannot be permitted to unilaterally

withdraw from the same. It was further held that a settlement

agreement entered between the parties through mediation has

got a certain solemnity attached to it and granting permission for

withdrawing from such an agreement would destroy the sanctity

of the whole process of mediation.

13. The learned counsel for the petitioner next contended