Marriages: Made in Heaven, Broken on Earth, Reconciled in Court?
Mar 20, 2019 15:33
Marriages are romanticized in all parts across the globe. This is probably the reason why, breakdown of a marriage is looked upon with so much more regret and remorse. It is considered to be something fateful.
However, the Indian legislature has been wise enough to include provisions to minimize the impact of negative adverse consequences, by including provisions for enabling reconciliation among the couple. As a result, a couple residing in Coimbatore, can resolve their differences without the need for divorce lawyers in Coimbatore. This blog aims to focus on the various provisions under personal laws in India, which provide for reconciliation of marriage.
The very first obligation of the district or family court, after receiving a divorce petition is to look for possibilities of reconciliation. Under Section 9 of the Family Courts Act, 1954, makes it mandatory upon the court, in the first instance itself, to attempt to reconcile the differences between a divorce-seeking couple.
Even the Law Commission of India, in its 59th report (1974) emphasized upon the fact that in matters related to the family, the court’s first instinct should be to arrive at an amicable settlement, instead of choosing to give a literal interpretation of the stringent rules of procedure, otherwise applicable to ordinary civil proceedings.
Section 23 (2) of the Hindu Marriage Act, 1955 reads as under:
“Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.”
Order XXXII A of the Code of Civil Procedure, 1908, which was amended in 1976, inserted the following provision under Rule 3:
“(1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.”
In the matter of Santhini v. Vijaya Venkatesh , the Supreme Court observed that:
“The role of a counsellor in Family Court was basically to find out what was the area of incompatibility between the spouses, whether the parties were under the influence of anybody or for that matter addicted to anything which affects the normal family life, whether they were taking free and independent decisions, whether the incompatibility could be rectified by any psychological or psychiatric assistance etc. The counsellor also assists the parties to resume free communication. Essentially, the counsellor assists the parents to shed their ego and take a decision in the best interest of the child.”
Section 9 of the Hindu Marriage Act, 1995, provides for the remedy of restitution of conjugal rights. When one of the spouses in a couple, deserts the matrimonial home without any reasonable cause, the other spouse can apply for a decree ordering restitution of conjugal rights.
However, the caveat attached to the above mentioned provision is that the court must form a subjective opinion by applying its judicial mind to the particular case, regarding the possibility of reconciliation. For example, in a case of contest divorce, one of the spouses is claiming to be a victim of torture and cruelty, with sufficient evidence to prove the same, the court should not probably not push for reconciliation, as doing the same would only result in subjecting the person to more abuse and suffering, amounting to a failure in serving justice.
The Code of Civil Procedure, 1908, also contains a general clause for amicable settlement of all kinds of disputes with the aid of quasi courts known as Lok Adalats. They consist of a government mediator, which helps the parties arrive at a win-win solution for both. The court then, only enforces their agreement.
Several women’s organisation and not for profit organisations have also set up their own centers for reconciliation of marriage disputes. Apart from these methods, there always exists the alternative of private dispute resolution by mediation or negotiation and couples who can afford these methods, often give priority to hiring private mediators.
As is evident from the above described paragraphs, there exist a lot of legal provisions and case laws, enabling reconciliation between couples. Also, there exist both private and public, institution that have specialized centers for the same.
Therefore, we can safely conclude that, marriages might be made in heaven by the Lords of the universe, however, it is the Lords of a nation that make sure, they don’t fall apart on Earth.
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