Divorce through Mediation: Legal framework of Divorce with mutual consent

Divorce, also known as dissolution of marriage, means terminating the bond of marriage.  It is a process through which the marital bond ceases as per the law of the country. It sets the couple free from all marital relations, rights and obligations. It allows the couple to come back to the status as if they are not married or gives them right to marry again.

In India, like many other personal issues, divorce laws are also different for various religions followed in the country. The Hindu Marriage Act, 1955, governs the divorce among Hindus, Buddhists, Sikhs and Jains; Muslims are governed by Dissolution of Muslim Marriages Act, 1939, Parsis follow the Parsi Marriage and Divorce Act, 1936 and Christians are governed by the Indian Divorce Act, 1869. All divorce disputes arising in civil and inter-community marriages are governed by the Special Marriage Act, 1956.

Types of divorce petitions

Divorce with mutual consent

When both the husband and wife agree to end their marriage, the court grants them divorce on the basis of mutual consent between the couple. Generally, divorce with mutual consent takes less time and relatively is inexpensive because the couple reaches consensus with respect to property, maintenance and child custody.

The duration of a divorce with mutual consent varies between 6 months to 18 months depending upon the court’s decision. As per section 13B of the Hindu Marriage Act,1955 and section 28 of the Special Marriage Act,1956, the couple should be living separately for at least one year before the beginning of such court proceedings. However, separation of at least two years is required under section 10A of the Indian Divorce Act, 1869. One thing which is to be noted here is that living separately as mentioned above does not mean living at different places but only the fact that the couple is not living as husband and wife is enough.

Divorce without mutual consent

The couple seeking divorce under this provision can file petition upon certain grounds only and stating proper reasons. There other blogs on our website covering Divorce without mutual consent.

The role of mediation in divorce

The family courts and laws encourage to settle such disputes with amicable settlements outside the courts instead of suffering of the whole family because of litigation and court proceedings. Mediation here is a non-adjudicatory dispute resolution process to reach on a cordial agreement for dissolution of marriage.

As per section 23(2) and 23(3) of the Hindu Marriage Act, the court according to the facts and circumstances of the case, directs to try reconciliation between the divorce-seeking parties. Similarly, section 34(3) and 34(4) of the Special Marriage Act provides reconciliation as the first preferred option for divorce related matters. The alternate dispute resolution mechanism is provided in Section 89 of Civil Procedure of Code in cases where there is any probability of a settlement.  In 2003 under Civil Procedure-Mediation Rule, the concept of mandatory mediation was introduced including family matters involving matrimonial cases since in the eyes of law it is one of the most important relationship which needs to be preserved.

In 2013, in the case of K. Srinivas Rao v D. A. Deepa, Supreme Court held that even in non-compoundable criminal cases where parties want to settle the dispute through mediation should be sent for same making it necessary for divorce cases to be sent for mediation if there are chances for settlement between the spouses.

Goals of divorce mediation

When both the parties seeking divorce agree to go for the process of mediation, there are certain goals of such mediation such as:

  1. Creating an impartial, de jure and mutually agreed divorce agreement.
  2. Avoiding the expense and trauma caused due to litigation
  3. Minimizing malevolence and post-dissolution squabbles.

Why to resolve matter through mediation?

With the increasing number of divorce cases in the recent years, divorce couples have decide on dissolving the marriage amicably and , the judicial system has also realized the need of developing mechanisms to hear and settle disputes outside the courtroom. Hence, in the recent times popularity of mediation has increased around the country.

Advantages to a mutual divorce:

  1. Quicker- mediation involves much lesser time.
  2. Less expensive- mediation is a low-cost procedure as compared to other procedure.
  3. Less formal- the informality of the mediation allows the parties to be more involved than a court-driven process because of abundance of laws and rules to be followed.
  4. Confidential- it is a more private way to discuss the issues rather than in court where everything happens publicly since people also don’t get comfortable disclosing their personal problems.
  5. Preserves relationships- the biggest advantage of mediation is that it helps to preserve relationships, business and personal things that usually gets highly affected due to years of litigation. It is more of collaborative than belligerent process.
  6. Control- in mediation, the parties have much greater control over the negotiation and outcome of the problem.
  7. Better results- parties generally are more satisfied of the results of mediation than litigation since it is reached through mutual consent of both the parties.

The parties in mediation are not required to reach a settlement always, sometimes they don’t.

Process of Mediation:

Most of the mediation process involves five stages- not necessarily in the same order as described below and also any stage can happen more than once as and when required.

  1. Introductory stage– this stage involves finding your counsel and briefing the about situation couple. Both the spouses share the background information about their situation. Reckoning on how well the spouses know each other and communicate, the decision on a suggests an approach to optimize the probabilities of reaching an agreement.
  2. Information-gathering stage– in this stage, collect all the necessary information to be fully aware of all the facts of the case to make the mediation successful. It may include financial documents such as tax returns, bank and mortgage statements, insurance policies, etc. If the information required is unavailable or disputed then mediator suggests ways to get it. Also, discussion regarding the laws that will govern the mediation, which involves laws related to division of assets and property, child custody, alimony, etc.
  3. Framing stage– in this stage, outlining all the interests of both the spouses in order to know the outcomes they are wanting from the settlement. These interests involve priorities, goals and concerns of the spouses. Now, often the interests of the two spouses overlap with each other such as in case of child custody, alimony, and property division.
  4. Negotiating stage–  it is time for negotiation to settle an amicable agreement. The negotiation involves amount and duration of alimony, child custody and time duration for child care, division of property and debt, etc.
  5. Concluding stage– in this stage, everything discussed and concluded is put in an agreement and both the parties sign it.

 If the court has directed the couple for mediation, then the mediator prepares a settlement report and submit it to the court along with the signed agreement. In case the couple was unable to negotiate and reach an agreement through mediation, then spouses go for litigation.

Conclusion

Mediation has also become popular mechanism in recent times to resolve matrimonial disputes since it is less time consuming and cost-effective, giving the parties the chance to reach to an amicable solution with respect to alimony, child custody and all such disputes which completely destroy relations in case of court-driven process. The couples with such matrimonial disputes opt mutual over litigation for better outcomes in a less distressing way and minimize impact of dissolution of marriage.

— Himanshi Sangtani an intern at Ravindra Vikram Law Associates

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Legal Remedy for Cyber Stalking and Online Harassment

Almost everyone and everything can be accessed with just one click behind a computer or phone, in this wave, there has been a surge in all forms of online stalking and sexual harassment especially, on social media platforms.  The element of anonymity encourages and leads to the commission of such acts. This article primarily decodes and simplifies the various forms of legal remedy that is available for any such form of ONLINE stalking or ONLINE sexual harassment.

In general, cyber stalking refers to computer-based harassment. The term is usually interchangeably referred as online harassment or online abuse. Further, it can be understood that Cyber/ Online harassment/ stalking/ abuse may be defined as a repeated, unsolicited, hostile behaviour by a person through cyberspace with the intent to terrify, intimidate, humiliate, threaten, harass or stalk someone else.

LEGAL REMEDIES

In India, legal remedies primarily exist in penal form for the offence of cyber stalking/ harassment. They are present in general as well as specific legislations such as the Indian Penal Code, 1860 and the Information Technology Act, 2000.

  1. The Indian Penal Code, 1860

The Penal Code has provisions that address issues of harassment/stalking that not only limit to physical forms but, also extend to cyber/online modes. The act inter alia defines stalking under section 354 D to include “the act of any man who monitors the use by a woman of the internet, email or any other form of electronic communication,” that essentially forms online stalking which is punishable under the act.

  1. Sexual Harassment – Section. 354 A

Section 354 A of the Indian Penal Code primarily punishes offence of sexual harassment. In terms of cyber stalking/ harassment it provides to punish the following:

  1. a demand or request for sexual favours; or
  2. showing pornography against the will of a woman; or
  3. making sexually coloured remarks.

For the commission of acts mentioned in a) and b) the punishment is rigorous imprisonment for a period which may extend to three years, or with fine, or with both. Further for the commission of offence mentioned in c), the punishment is imprisonment of either a period which may extend to one year, or with fine, or with both.

Hence 354 A punishes posting of lewd comments or sexually coloured remarks on a woman, forceful sharing/messaging/posting showing of pornography to a woman, against her will and any requests made for sexual favours through online platforms as well.

  1. Voyeurism – Section. 354 C

Section. 354 C of the Indian Penal Code provides to punish the act of voyeurism. It inter alia defines the act of voyeurism to include the act of a man

  • watching or capturing the image of a woman or
  • disseminating such an image

when the woman is engaging in a private act.

In an instance, where the victim has ONLY consented to the act of capturing the image or recording a video of such kind, but has NOT CONSENTED or agreed upon the circulation or dissemination of the same, then, upon such non-consensual circulation or dissemination, such act of circulation or dissemination will constitute as an offence under section 354-C

The punishment for the commission of voyeurism as given under this section

  • for the first conviction is imprisonment for a term not less than 1 year but, which may extend up to 3 years along with a fine and,
  • for the second or subsequent conviction, imprisonment for a term which shall not be less than 3 years, but which may extend to 7 years along with the liability to pay a fine.

Hence, the seriousness of the offence is indicative through the aggravated punishment that is given to repeat offenders.

  1. Online Stalking – Section 354 D

There is a provision that addresses the issue of stalking that not only limit to physical forms but, also extends to cyber/online modes. It defines stalking to include “the act of any man who monitors the use by a woman of the internet, email or any other form of electronic communication,” that essentially forms online stalking which is punishable under this provision.

Certain exceptions have been laid out for the act as described under this section, the important one being if such act is reasonable and justified in a certain circumstance.

The punishment for commission of the offence under this section:

  • for the first conviction is imprisonment that may extend to a maximum term of 3 years along with a fine &
    • for the second or subsequent conviction is imprisonment that may extend to a maximum of 5 years along with a fine.

In Kalandi Charan Lenka v. State of Orissa, the accused sent obscene, vulgar and scandalous mails, published obscene pamphlets and the accused created a fake Facebook account with name of the victim with intentions to intimidate her and exploit her sexually. Upon the accused having changed her place of study to avoid harassment, the accused followed her to harass her online and offline.  Theaccused was found to be guilty for the offence of sexual harassment.

  1. Word, gesture or act intended to insult the modesty of a woman– Section 509

Section 509 of the Indian Penal Code has been inserted in to the code to protect the modesty and chastity of women. In order to such an offence certain  conditions are to be met, one The accused must have the intention to insult the modesty of a woman and in pursuance of such intention the accused must have carried out an act knowing that the woman whose modesty is being insulted can hear or see such sounds, words, gestures and objects. The act of insult of modesty could also be through the invasion of the privacy of a woman.

The punishment for conviction under this provision is imprisonment that may extend to a maximum period of 3 years along with a fine.

  • Criminal Intimidation – Section 506 and Section 507

Section 506 and 507 of the Indian Penal Code, 1860 punish the offence of criminal intimidation. The essence of criminal intimidation as described under section 503 is the threat of causing injury /harm with the intention to cause such harm/injury and hence cause alarm in such person or force them to do an act they aren’t legally bound to do or force them to omit an act that they are legally bound to do.

In the context of harassment of women online, Section 506 can be accessed when a woman receives online threats of rape/ acid attack / sexual harassment/ any other criminal offence.

The conviction for the commission of an offence under Section 506 is punishable with:

  1. Imprisonment which may extend to a maximum of 7 years or fine or both – if the intimidation is to cause death or grievous hurt or to cause fire to a property or commit a crime punishable with life imprisonment or imprisonment that may extend to 7 years or to impute unchastity to a woman.  
  2. Imprisonment that may extend to 5 years or fine or both – when any other form of criminal intimidation is committed other than those given in (a).

Criminal intimidation of rape/acid attack/ sexual harassment online would fall under punishment given in (a).

Section 507 can be accessed or used when the criminal intimidation is committed by a person anonymously or by using a fake account or by concealing their identity.

Punishment for conviction of offence under section 507 is the same as that prescribed under section 506 along with the provision to extend the imprisonment to an additional 2 years.

6. Defamation- Section 499

A person can seek remedy under Section 499 of the Indian Penal Code, which exclusively deals with remarks on social media or obscene images or videos posted for public consumption and which prove to be defamatory, if they believes that their reputation is being harmed by a visible representation published on the internet can invoke this provision Under this provision, defaming a woman or a man on online platforms can be punished.

  1. Information Technology Act, 2000

Information Technology (IT) Act is a special legislation that was legislated with the object of specifically providing legal remedy for cyber/online offences.

  1. Section 67 & Section 67 A – Publication, transmission and causing of transmission of obscene content and sexually explicit material

Section 67 of the IT act punishes the act of publishing, transmitting and causing the transmission of obscene/ vulgar content in electronic form.  The term obscenity under this section is said to include any word that creates sexual thoughts in the reader or hearer or words used to express sexual desires or thoughts. Furthermore, judicial pronouncements  have also held that words even if the words used are extremely unparliamentary, unprintable and abusive in nature, so long as the they aren’t capable of arousing sexual thoughts in the minds of the hearers or reader and does not involve any lascivious elements  that arouse sexual thoughts or desires  or the words do not have the effect of depraving persons, and defiling morals by sex appeal or lustful desires, it cannot be penalised and brought under  Section 67 of the IT Act.

The punishment for first conviction of this offence is imprisonment for a term that may extend to a maximum of 3 years along with a fine that may extend up to Rupees Five Lakhs.

The punishment for second or subsequent conviction is imprisonment that may extend to a term of five years and with a fine that may go up to Ten lakh rupees.

Section 67 B of the IT act punishes an offence similar as in Section 67 B but however in a graver and more express form. Section 67 B punishes the act of publishing, transmitting and causing the transmission of obscene/ vulgar content in a sexually explicit way through an electronic form. Here the term sexually explicit in simple terms means that whatever matter is published or transmitted must be describing or representing sexual activity in a direct and detailed way along with it necessarily being lascivious or of prurient interest. Further an image of a person bilateral sexual activity, it can be unilateral sexual activity but it should be explicit and not implied.

For Example: When the image of a male private part is sent to someone through a Facebook private message, one can seek remedy under Section 67 of the act. However, a picture of an erected male private part held in their hand, is sent as a message, it is a more sexually explicit image along with being vulgar and obscene and hence can be charged under Section 67 A.

The punishment for commission of an offence under Section 67 A is:

  1. For first conviction – Imprisonment that may extend to 5 years along with a fine that may go up to 5 Lakh Rupees
  2. For second or subsequent conviction– Imprisonment that may extend up to 7 years along with a fine that may go up to 10 Lakh Rupees.

Both these offences require the obscene content to be sent without the consent of the receiver/receivers. Further, the exceptions to these two sections is when the publication is proven to be correct as being for the public good or which is use bona fide for religious purposes.

2) Section 67 B- publishing or transmitting of material depicting children in sexually explicit act

Section 67 B of the IT act provides to punish those who publish, transmit and download child pornography that is children engaging in sexually explicit acts. The provision provides in detail the various acts relating to children in sexually explicit positions that could constitute an offence under it. The victim as under this section can be a child that is any person who has not completed the age of 18 years.

The punishment for the commission of offence under Section 67 B is:

  1. For first conviction – Imprisonment that may extend to 5 years along with a fine of ten Lakh Rupees.
  2. For second or subsequent conviction- Imprisonment that may extend to 7 years along with a fine of ten Lakh Rupees.

3) Section 66 E- Violation of Privacy

Section 66 E of the IT Act punishes anybody who intentionally/knowingly captures, publishes or transmits a picture or video graph of the private area of a person without their consent. Such act is made punishable primarily as a matter of breach of privacy of person and as means to tackle voyeurism similar to his provision of law specifically deals with the offece with respect to electronically sent visual image with the intention to be viewed by a person or persons of an image videotape, photograph, film or record by any means the naked or undergarment clad genitals, pubic area, buttocks or female breast.

For example, in case a person A has installed hidden cameras in a ladies changing room where A knew that a B would come to swim and subsequently A has captured a video of B changing through the hidden cameras and has forwarded this video of B through MMS. Person B can seek remedy under section 66 E of the IT Act, against A’s actions.

Punishment for commission of offence under Section 66 E is

  • Imprisonment that may extend to three years or
  • A fine that may go up to two lakh Rupees or
  • Both.

In the light of increased connectivity and anonymity, the instances of online harassment has gone up and subsequently laws have evolved and been incorporated to tackle these problems primarily through two legislations that are the Information Technology Act and the Indian Penal Code. The various acts of voyeurism, online stalking, child pornography, anonymous criminal intimidation (threats of rape/ acid attack or other forms of sexual harassment) etc have been made punishable and legal recourse is hence, made available for the same. Most of these offences have a maximum punishment that is usually for longer periods of 3, 5 or 7 years to create a greater level of deterrence. Furthermore, some offences such as stalking and voyeurism under section 354 C and 354 D of the Indian Penal Code are made punishable with graver punishment if there are instances of repeated offenders which is again indicative of the seriousness and gravity of the offence.

— Gowri Krishna an intern at Ravindra Vikram Law Associates

The content here is for educational purposes only. User access at your own volition. Click the link to read the full Disclaimer.


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