Issuing a slew of guidelines to be followed by the Mediators while drafting settlement agreements in matrimonial disputes, the Delhi High Court has asked to publish such agreements in Hindi as well, in addition to English.
The single-judge bench of Justice Swarana Kanta Sharma observed that a common understanding of the parties on essential conditions for the enforceability of an agreement is crucial in a mediated settlement agreement and expressing intentions and commitments to the agreement through clear and concise language is critical for its effective enforcement.
"It is, therefore, directed that concerned In-charge of Mediation Centres will ensure that the mediated settlement agreements are prepared in Hindi language also, in addition to English language, as far as possible. It is being directed since in majority of cases, the parties do not comprehend English and their spoken language and mother tongue is Hindi. However, in cases the parties are well-versed in English language and want the agreement to be in English language only, there will be no such insistence or requirement," the court ordered.
Brief Facts of the Case
The marriage between the complainant i.e. respondent no. 2 and co-accused Lalit was solemnized in 2011. It has been stated that there was irretrievable breakdown of the marriage due to incompatible behaviour, conduct and temperament of the parties. Thereafter, on the complaint of respondent no. 2 alleging physical and mental cruelty for demand of dowry and beating by her husband and in-laws, the present FIR was registered against the husband as well as the petitioners i.e. brother of husband’s father, his son, and elder brother of husband. The matter was referred to mediation centre at the time of hearing of anticipatory bail application of the accused husband. The matter was amicably settled before the mediation centre and all the disputes were resolved between the parties which were reduced to writing by way of a mediated settlement agreement dated 30.07.2014.
However, police again filed a chargesheet against all the accused persons and duly informed the Magistrate about the settlement arrived at between the parties and the quashment clause in the agreement. In the meantime, the petition to quash FIR was filed by the husband as only he had been summoned and it succeeded before summons could reach him. Thus, even husband or his relatives did not know that chargesheet had been filed by police, as the summons were to reach the husband before 25.08.2015. The fiasco didn't end as this time the other relatives of the husband i.e. petitioners were summoned by the Magistrate. By the time the present petitioners realised that they too needed to get the FIR quashed against them, the complainant conveniently changed her mind and appeared before the Court only to inform that she had not entered into an agreement with them but only with her husband and therefore, FIR cannot be quashed, even after receiving the entire amount of settlement including the amount for quashing of FIR.
High Court's Observation
The Court at the outset noted that a bare perusal of the Mediated Settlement Agreement reveals that it has been clearly mentioned in clause 5 of the Agreement that the complainant shall “cooperate with the respondents” and shall file her affidavit for quashing of the FIR. It thus clarified that the settlement agreement between the parties towards full and final settlement was not with the husband alone, and in case it was so, the word ‘respondents’ would not have been mentioned in Clause 5 of the Agreement.
"Furthermore, clause 9 of the Agreement also mentions that the settlement entered into between the parties was “full and final” and that both the parties undertook to not file any “case/complaint/suit/petition against each other”. It was also agreed that they “shall be entitled to lead their life independently and both the parties shall not interfere in the life of each other and family members of each other”. The concluding clause also records that the settlement between the parties had been voluntarily arrived at with their own free will and without any force, pressure or coercion, and that the parties would remain bound by the terms of the agreement," the court ordered.
If the Settlement Agreement is scrutinized from a close angle, it will be revealed that though it has been signed by the husband only, it is clear from the contents of the agreement that the settlement was being arrived at on behalf of all the respondents i.e. co-accused persons in present FIR since they were his close family members.
The Court further went on to note that even before the Family Court, the complainant/ respondent no. 2 didn't state that she would make her statement for quashing of FIR only qua the husband and not in respect of other accused person.
The Court was of the view that the approach of the complainant, was neither correct nor acceptable as she has already received the entire amount as per the settlement agreement towards the settlement of all her claims and matrimonial disputes as well as for quashing of present FIR.
Stating that if it were to return the finding that the settlement was arrived solely between the wife/complainant and the husband, the court said that it would undermine the fundamental objective of the process of mediation in this case.
"Suffice it to say, the very purpose of mediation in this case has already been defeated as legal proceedings have been prolonged and dragged on for 10 long years despite a successful mediation between the parties," the Court added.
Upon a careful analysis and calibration of how the mediation process was conducted in this case from start to finish and keeping in mind the peculiar circumstances of the present case, the court came to the conclusion that it is difficult to accept that the settlement in this case was only qua husband for the purpose of quashing of FIR.
"As the surrounding circumstances indicate, the negotiations and execution of the settlement agreement took place pursuant to a Court referred mediation, and both the parties had engaged legal counsels and after negotiations, the substance of the agreement had been reduced into writing, which is a matter of dispute today. The complainant had understood and acted upon the agreement in question as she had filed petition for obtaining mutual consent divorce, had withdrawn certain cases and FIR against husband had been quashed and she had received all the money that she had agreed to as full and final settlement of the dispute with the husband and had undertaken that both of them will not interfere in peaceful life of each other and their family members life. The settlement agreement therefore, has to be accessed in the context of the circumstances in which it has reached this Court," it said.
Dispute Over Clause Which Resolved The Dispute: Reasons
The Court opined that the dispute in question has arisen primarily due to an inadequately worded and ambiguous Mediated Settlement Agreement.
"In the process of mediation, the task of drafting an agreement at the culmination of long, arduous and challenging mediation proceedings carries significant responsibility. Each word included in the agreement holds importance for the parties involved. This is particularly crucial in cases involving criminal matters, as omission of even a single word can lead to severe legal ramifications and the interested parties can exploit such loopholes to their advantage, causing disadvantages to the opposing party," it said.
The primary objective of mediation in matrimonial cases is to facilitate early resolution of disputes outside the Courts, the court remarked.
"In India, matrimonial disputes often include criminal proceedings. In case of comprehensive settlement agreements between the parties, especially when law mandates mediation in cases of family and matrimonial disputes, a number of issues should be considered and the settlement agreements arrived at from successful mediation must be drafted with due care and caution, so that the very purpose of mediation is not defeated."
In cases relating to matrimonial offences, at times, there are distant relatives, old parents, married sisters, etc. who are also involved and arraigned as accused, but they may not attend the mediation proceedings as the same generally will take place between the two key players i.e. the husband and wife, it added.
"In such cases, the disputes are often settled on behalf of the entire family by the husband. The mediator while drafting an agreement must remember that the parties have come to an understanding and have reached a mediated settlement with willingness to resolve the disputes due to the skills of the mediator and help of family, friends, counsels etc., however, their own needs and protection of their interests remains paramount."
Noting that there is no denying the fact that each case that reaches mediation and successfully culminates into a settlement is based on its own circumstances and dynamics, the court opined that an inadequately drafted agreement will be the one which fails to include essential elements such as the name of all the relevant parties, the terms outlining the conditions of settlement, and the consequences in the event of non-compliance or breach.
The mediation process involving family disputes, albeit, is no more in its infancy in India. However, considering the problems that arise in such disputes, it is still evolving and trying to grapple with new problems which may arise on several grounds. While there can be no fixed pattern for preparing an agreement or a performa to fill in for the purpose of affecting a settlement before a mediator, the mediators dealing especially with matrimonial disputes should keep in mind that such agreements are reached with an intent to attain finality to all the disputes. In matrimonial disputes, the parties in majority of cases want the disputes to be settled at the earliest while the emotions and tempers run high. While the Mediator performs the duty of not only dealing with those tempers but also their disagreements and emotions, the mediator also has another responsibility to ensure that the agreement reached by the parties, as well as the hard work of the parties, their families, counsels and the Mediator, is crystalised. It is unfortunate to note that these attempts fail in a large number of cases, and the parties find themselves in conflict once again due to flaws or ambiguities in the settlement agreements.
in view of the above, "Guidelines Apropos Drafting A Settlement Agreement in Matrimonial Disputes with Special Reference to Clauses dealing with Criminal Cases" were issued.
42. Having discussed the significance of process of mediation in resolution of a dispute, especially those arising out of family and matrimonial cases, and having taken note of complexities that can arise due to inadequate drafting, inconsistencies, omissions or oversights within a settlement agreement achieved between parties subsequent to a successful mediation, this Court deems it appropriate to lay down following guidelines in relation to drafting of a Mediated Settlement Agreement, in addition to the guidelines laid down:
Judicial Realism: Urgent Need to have Settlement Agreements in Hindi
The Court was of the view that there is an urgent need to ensure that the agreement drafted to settle the issues to bring an end to a future or pending lis does not itself become a matter of dispute giving rise to another lis between the parties.
"The common understanding of the parties on essential conditions for enforceability of an agreement is crucial in a mediated settlement agreement and expressing intentions and commitments to the agreement through clear and concise language is critical for its effective enforcement. But a mediator should bear in mind that the level of understanding of the parties concerned may vary according to their social backgrounds, and thus, the mediator should remain attentive and alert to the circumstances, capacity, and linguistic abilities of the parties involved, considering their backgrounds and language proficiency."
Since mediated settlement agreements are usually drafted in English, the court pointed out that it is important to carefully draft and ensure that the parties concerned comprehend the agreement in vernacular language as this can significantly impact its effectiveness and execution.
Assuming that the majority of the litigants who approached Courts in Delhi speak Hindi as their first language, the court directed for the drafting of the settlement agreement in Hindi as well.
"Given that Hindi is their mother tongue, they are far more adept at speaking and understanding it than they are at other languages such as English. However, the mediated settlement agreements in Delhi are drafted only in English. In such a scenario, the Settlement Agreement and the conditions thereof may not always be adequately clear to the parties and at times, the translation from English to Hindi may not convey exactly what the parties intend to do."
The Court also mentioned that as per directions of the Central Government, a Hindi Department has been constituted in every Court and Hindi Committee is also constituted in every Court complex. The project of translation of the judgments from English to Hindi is already successfully working under guidance of Hon'ble Apex Court, it added.
"It is, therefore, directed that concerned In-charge of Mediation Centres will ensure that the mediated settlement agreements are prepared in Hindi language also, in addition to English language, as far as possible. It is being directed since in majority of cases, the parties do not comprehend English and their spoken language and mother tongue is Hindi. However, in cases the parties are well-versed in English language and want the agreement to be in English language only, there will be no such insistence or requirement"
The Courts hoped that once the agreements are written in Hindi, wherever required, which the parties understand and the Mediator performs his/her duty carefully, it will ensure not only the finality of agreements in the mediation centers but also its successful culmination in the Courts of law which is the aim and objective of mediation centers.
The Court concluded that the lives of people embroiled in matrimonial litigation are often in state of turmoil, and thus, the mediation as a method of alternate dispute resolution has to come to their rescue instead of further extending the state of turmoil
Case Title: Chhatter Pal & Ors. vs. State & Anr.
Case Details: CRL.M.C. 6197/2019
Coram: Hon'ble Mr. Justice Swarana Kanta Sharma
Advocates for Petitioner: Mr. P.K. Anand, Advocate
Advocates for Respondent: Mr. Satish Kumar, APP for the State with SI Tej Ram, P.S. Uttam Nagar. Ms. Shanta Pandey, Mr. Hiren Dasan, Ms. Preeti Chauhan, Advocates for R-2 with R-2.
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