Ajit J. Gunjal, J.
1. Petitioner is the husband. Respondent is the wife. The marriage was solemnized on 16.5.1991. During the wedlock the respondent-wife gave birth to two children. The relationship between the husband and the wife are strained, inasmuch as, there is lot of acrimony between them. Having regard to the animosity between the husband and wife, the wife initiated proceedings under Section 125 of Code of Civil Procedure against the husband seeking maintenance. She also lodges a criminal complaint under Section 498A read with Section 34 of Indian Penal Code as against the husband and his family members. It is their case that several unpleasant instances have taken place wherein both the husband and wife have quarreled and also hurled abuses at each other.
The husband also files a petition in M.C. No. 491/2007 seeking dissolution of the marriage. Since the dispute related to matrimonial discord, the matter was referred to the mediation center to explore the possibility of any settlement. Indeed, the reference to the mediation center is under Section 89 of the Code of Civil Procedure. At the mediation center, the matter was taken up for mediation on several occasions, when their respective counsel were present and also when only the husband and wife were present. Efforts were made to reconcile the differences between the husband and wife. But however, the said efforts failed. The only other alternate solution was to see if the marriage between the husband and wife could be dissolved by mutual consent. Indeed, both the husband and wife resolved that the marriage is no longer workable hence decided to call it a day and have entered into a settlement as contemplated under section 89 of the Code of Civil Procedure read with Rules 24 and 25 of the Mediation Rules 2005. Indeed in terms of the settlement made available pursuant to the terms of the settlement, the husband has made a gift of the property and has also agreed to transfer the ownership right to the extent of 50% undivided right, title and interest in a house and further the wife had agreed to withdraw the proceedings initiated by her under Section 125 of Code of Civil Procedure. It was also agreed that they would withdraw all the allegations made against each other and further that both of them would go their own way in future. The said memorandum of settlement was sent to the Family Court to put its final seal on the dissolution of marriage having regard to the terms of settlement. The learned Family Judge has declined to put his seal of approval on the said memorandum of settlement, inasmuch as, that would amount to a proceedings under Section 13B of the Act and thus was of the view following the ruling of this Court declined to accept the memorandum of settlement and directed the parties to lead evidence in support of their claim. The said order is impugned in this writ petition.
2. Learned Counsel for the petitioner submits that the matter was referred to the mediation center by the Family Court itself so that the matter could be thrashed out without going through the agony of a full-fledged trial. He further submits that the decision which is sought to be pressed into service by the Family Court has no application to the case on hand. According to him, since all the allegations traded against each other having been withdrawn, the question of the husband entering into the witness-box and stating his, would be wholly redundant.
3. Sri. M.S. Harinath, learned Counsel for the respondent submits that the wife stands by the settlement arrived at between the parties. He submits that the wife would be extremely happy if the Family Court would put a seal of dissolution and also on the memorandum of settlement arrived at between the parties before the mediation center.
4. I have perused the impugned order. In identical situation in W.P. No. 35613 of 2009, decided on 04.12.2009, 1 have ruled that when the matter is referred to a mediation center by the Family Court and if the matter is settled, it would be a valid agreement and the Family Court is required to give effect to the said settlement. Indeed, this Court had no occasion to deal with the Division Bench ruling in the case of Munesh v. Smt. Anasuyamma alias Parvathi reported in AIR 2001 Kar 355 which is sought to be pressed into service by the learned Family Judge. This Court while examining whether the compromise petition under Order 23 Rule 3 of the Code of Civil Procedure in a proceeding under Section 13B of the Hindu Marriage Act can be given effect to, the facts are altogether different in the case on hand and also the case decided by the Division Bench. The Division Bench was of the view that the decree for divorce in terms of the compromise recorded under Order 23, Rule 3 of Code of Civil Procedure is not legal and such compromise, runs against the scheme contemplated under Sections 13 and 13B of the Hindu Marriage Act. Indeed, the facts therein were that the husband and wife were at loggerheads and a petition was filed under Section 13(1)(ib) of the Hindu Marriage Act seeking dissolution of the marriage. The petition was filed on the ground of desertion. The Trial Court dismissed the petition as against which. Miscellaneous First Appeal was preferred. The dismissal was on account of failure of the husband to prove desertion against the wife. Indeed, during the pendency of the proceedings a petition was filed under Order 23, Rule 3 of Code of Civil Procedure agreeing upon certain terms and conditions, inasmuch as, the litigation continued for a period of 15 years and any reconciliation between the parties was not possible. It is no doubt true that under Order 23, Rule 3 of Code of Civil Procedure the effect is that the compromise arrived between the parties is to he given effect to if it is a lawful agreement. Indeed, the facts in the case of Munesh v. Smt. Anasuyamma Alias Parvathi would disclose that during the course of the proceedings, the wife had reciled from the terms of compromise, inasmuch as, the husband had tried to play fraud with law, but however, the situation on hand is not Identical.
5. As observed earlier, the proceedings were referred to the Mediation Center by the Family Court. The parties have even found that there is no possibility of them continuing to stay as husband and wife. Hence they have decided to part ways. In this regard, the scope of Section 89 of the Code of Civil Procedure is also required to be looked into. Section 89 of the Code of Civil Procedure would relate to Arbitration and the mode of settlement of disputes outside the Court. Indeed, it is to be noticed that there are four modes of settlement of disputes outside the Court which are in the nature of Arbitration. Conciliation, Judicial Settlement including settlement through Lok Adalath or by Mediation. Sub-section (2)(d) of Section 89 would refer to the settlement of disputes by mediation. It would read that the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. The procedure as prescribed is to be found in Rule 24 of the Mediation Rules. Rule 24 of the Mediation Rules would relate to settlement by agreement. Sub-rule (1) would speak about an agreement which is reached between the parties in regard to all the issues in the suit or some of the issues and the same shall be reduced in writing. The Sub-rule (2) would state that the agreement of the parties so signed and attested shall be submitted to the mediator who shall, with a covering letter signed by him forward the same to the Court in which the suit is pending. Rule 25 would be more relevant for our purpose wherein it contemplates that if a settlement is recorded between the parties, the Court is required to fix a date and pass a decree in terms of the compromise arrived at between the parties.
6. The Apex Court while dealing with the scope of Section 89 in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India reported in : AIR 2005 SC 3353 has observed thus:
61. A doubt has been expressed in relation to Clause (d) of Section 89(2) of the Code on the question as to finalisation of the terms of the compromise. The question is whether the terms of compromise are to be finalised by or before the mediator or by or before the Court. It is evident that all the four alternatives, namely. Arbitration, Conciliation, judicial settlement including settlement through Lok Adalat and mediation are meant to he the action of persons or institutions outside the Court and not before the Court. Order X, Rule 1C speaks of the Conciliation forum' referring back the dispute to the Court. In fact, the Court is now involved in the actual mediation/conciliation. Clause (d) of Section 89(2) only means that when mediation succeeds and parties agree to the terms of settlement, the mediator will report to the Court and the Court, after giving notice and hearing the parties, 'effect' the compromise and pass 'a decree in accordance with the terms of settlement accepted by the parties. Further, in this view, there is no question of the Court which refers the matter to mediation/conciliation being debarred from hearing the matter where settlement is not arrived at. The Judge who makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be settlement and on that ground he cannot be treated to be disqualified to try the suit afterwards if no settlement is arrived at between the parties.
7. Having regard to the scope of Section 89 of the Code of Civil Procedure and the Mediation Rules, I am of the view that the learned Family Judge was not justified in holding that since the parties have not filed a petition under Section 13B of the Hindu Marriage Act, the settlement cannot be given effect to. Ultimately, the very purpose of referring the matter to the Mediation Center is to see that the litigation comes to an end.
8. The Apex Court in a similar, if not, identical case, in the case of Anil Kumar Jain v. Maya Jain reported in 2009 AIR SCW 5899 has exercised its powers under Article 142 of the Constitution of India and has passed orders to do complete justice to the parties. Indeed, that was also a case where the parties had initiated proceedings under Section 13-B of the Hindu Marriage Act seeking dissolution of the marriage. Indeed, one of the spouses withdrew the consent before a decree could be passed. The Apex Court was of the view that except the Supreme Court, no other Court can pass a decree of divorce exercising its powers under Article 142 of the Constitution of India. In the case on hand, it is to be noticed that none of the parties have withdrawn the consent given during the course of mediation and also the terms of the settlement. This is another reason for the Family Court to accept the memorandum of settlement. Indeed, things would be slightly different if one of the parties to the memorandum of settlement withdraws from the consent given on the ground of coercion etc. Then, the family Court certainly can insist the parties to get on with the trial. But however, in the case on hand, that is not the situation.
9. Another factor which is required to be noticed is that when the marriage is irretrievably broken and the chances of reconciliation are minimal or even remote, the Courts are required to grant a decree for dissolution of marriage. It is no doubt true that Rule 25 of the Mediation Rules would contemplate that the settlement arrived at between the parties is lawful. Usage of the phrase 'lawful' in Medication Rules is only to ascertain that the parties have agreed to the terms of settlement and there is no coercion. It is only to that extent the usage of the phrase lawful' can be pressed into service. The said phrase lawful' cannot be stretched to an absurdity to render the proceedings before the Mediation Center otiose. It is no doubt true that the Court is also required to assure itself of the maturity and the comprehension of the spouses: absence of coercion/intimidation/undue influence: duration of the marriage sought to be dissolved; absence of any possibility of reconciliation; lack of frivolity; lack of misrepresentation or concealment; the age of the spouses and the deleterious effect of the continuance of a sterile marriage on the prospects of re-marriage of the parties. The purpose of referring to the matter to the Mediation Center is to cut-short the agony and to see that the marriage between the parties which is no longer workable stands dissolved.
Hence I am of the view that the learned Family Judge was not justified in driving the parties to a full-fledged Trial when both of them had decided that the possibility of staying together is virtually non-existent.
Hence, the following order is passed:
(1) Petition is allowed. The impugzied order is set aside.
(2) The learned family Judge is directed to give effect to the memorandum of settlement arrived at between the parties before the Mediation Centre.
(3) The family Judge shall also ascertain from the parties that the said settlement before the Mediation Centre was voluntary and without any coercion or pressure from any quarters.