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This article has been researched and written by Advocate Aarun Chanda, who practices divorce law in Mumbai and Pune. It is intended solely for academic purposes and should not be construed as legal advice. The views expressed are personal. Readers are encouraged to consult a qualified lawyer or advocate specializing in divorce cases for professional legal guidance.
There is a peculiar phenomenon in matrimonial litigation which, after several years of practice before the Family Courts and High Courts, I have come to regard with both amusement and concern.
A husband and wife may have lived together for ten or fifteen years, raised children, bought a house, travelled together and shared enough family photographs to fill several albums. Yet, once they enter litigation, they can suddenly become experts in remembering everything the other person did wrong.
I remember a matter in my chambers where the husband arrived with a file so thick that my junior jokingly asked whether we were preparing for a divorce petition or defending a thesis on the history of the marriage.
The husband was convinced that his wife had ruined the marriage.
The wife, naturally, had an equally convincing version.
After nearly an hour of hearing both sides, I asked a fairly simple question: “If the Court gives you everything you are asking for, what exactly will you have five years from now?”
There was silence.
That silence, in many matrimonial matters, is more instructive than several hundred pages of pleadings.
Because matrimonial litigation is not merely about determining who was right yesterday. It is often about deciding how two people, who may no longer wish to live together, are going to conduct their lives tomorrow.
That is where mediation assumes enormous importance.
And when a matrimonial dispute reaches the Supreme Court, mediation can sometimes provide the parties with something that ordinary adversarial litigation struggles to offer—a structured opportunity to stop fighting the case for a moment and start discussing the problem.
Matrimonial disputes are uniquely suited to mediation
A matrimonial dispute is fundamentally different from a commercial dispute.
If two companies disagree over a contract, the court can determine the contractual rights of the parties. If two persons dispute ownership of property, title documents and evidence may eventually resolve the controversy.
But a matrimonial dispute rarely has such neat boundaries.
A divorce petition may contain allegations of cruelty. A maintenance application may raise questions of financial dependence. A custody dispute may involve the education and welfare of a child. A domestic violence proceeding may arise alongside criminal proceedings. There may be disputes over jewellery, household articles, property, loans and even social-media communications.
In other words, one unhappy marriage can produce a remarkable number of court files.
Lawyers sometimes joke that a matrimonial dispute is the only litigation in which the parties can begin with one case and, before long, have enough proceedings to require a spreadsheet.
But beneath the humour lies a serious problem.
The more proceedings there are, the more difficult it becomes for the parties to separate the original disagreement from the litigation itself.
The marriage may have ended, but the litigation continues to provide a reason for the parties to remain connected.
Mediation can break that cycle.
The law itself expects courts to attempt settlement
Mediation in matrimonial matters is not merely a fashionable alternative to litigation. It has a firm statutory foundation.
Section 9 of the Family Courts Act, 1984 places a duty upon the Family Court to make efforts, in the first instance and where possible, to assist and persuade the parties to arrive at a settlement. Where there appears to be a reasonable possibility of settlement, the Family Court may adjourn the proceedings to enable such efforts to be made.
The language is significant.
The Family Court is not conceived merely as a smaller civil court dealing with matrimonial disputes. Its statutory design requires an active effort towards settlement.
The same philosophy is reflected in Section 23(2) of the Hindu Marriage Act, 1955, which requires the court, where appropriate, to make efforts to bring about reconciliation between the parties.
The Code of Civil Procedure also recognises settlement-oriented mechanisms through Section 89 and Order XXXII-A, while the modern mediation framework has been strengthened considerably by the Mediation Act, 2023.
The Mediation Act expressly recognises mediation as a means of resolving, among other disputes, family and matrimonial matters and seeks to promote institutional and online mediation as part of India’s broader alternative dispute-resolution framework.
Therefore, when a Family Court or the Supreme Court sends a matrimonial matter to mediation, it is not sending the parties away from the justice system.
It is using another instrument within the justice system.
The Supreme Court has repeatedly encouraged mediation
The Supreme Court’s jurisprudence has consistently recognised matrimonial disputes as particularly appropriate for mediation.
In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the Supreme Court emphasised the importance of mediation and conciliation in matrimonial disputes and directed courts dealing with such matters to make meaningful efforts towards settlement. The Court also recognised the usefulness of mediation centres and even contemplated pre-litigation mediation initiatives in matrimonial disputes.
The significance of that judgment goes beyond the particular matrimonial controversy before the Court.
It reflects a larger judicial understanding: matrimonial litigation should not automatically become a battle to be fought until the last possible appeal.
In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd., (2010) 8 SCC 24, the Supreme Court identified disputes arising from strained or soured relationships—including matrimonial causes, maintenance and custody disputes—as categories ordinarily suitable for ADR processes. The Court’s approach has subsequently been relied upon in cases where the Supreme Court considered mediation or other ADR mechanisms particularly appropriate.
The reasoning is quite intuitive.
When a relationship has become strained, an adjudication may determine legal rights, but a negotiated settlement can address the practical consequences of the broken relationship.
That distinction matters enormously in family law.
Mediation is not an attempt to force a broken marriage to survive
This is perhaps the most important point to understand.
When I tell a client that the matter has been referred to mediation, the immediate response is sometimes:
“Does that mean the Court wants us to compromise?”
Not necessarily.
And it certainly does not mean that a person must return to a marriage that has become unsafe, abusive or fundamentally unworkable.
Mediation is not synonymous with reconciliation.
Reconciliation is one possible outcome.
Settlement is another.
An agreed separation may be another.
In some cases, the mediator may discover that the parties genuinely want to rebuild the marriage but have become trapped in a cycle of anger and misunderstanding.
In other cases, the mediator may help them recognise that the marriage is over and that the real question is how to end it responsibly.
Both are legitimate outcomes.
The objective of mediation is not to preserve every marriage at any cost.
The objective is to enable the parties to make an informed and voluntary decision about their future.
The great advantage is that mediation looks beyond the pleadings
A matrimonial petition tells the court what happened.
A mediation session can explore what the parties actually need.
That difference is critical.
A wife may seek maintenance not merely because she wants a monetary order, but because she needs financial certainty after separation.
A husband may resist maintenance not because he refuses all financial responsibility, but because he fears an open-ended liability.
A father may seek custody when what he really wants is regular and meaningful involvement in his child’s life.
A mother may resist visitation because she is worried about the child’s welfare rather than because she wants to exclude the father.
These nuances do not always emerge clearly from pleadings.
In court, each side naturally presents its strongest legal case.
In mediation, there is an opportunity to discuss the underlying interests.
That is where settlements are often born.
Confidentiality changes the conversation
There is another reason mediation can work particularly well in matrimonial matters: confidentiality.
Family disputes often involve deeply personal matters—relationships, medical issues, financial circumstances, allegations concerning intimate conduct and communications between spouses.
People do not always speak frankly when they believe every sentence may eventually appear in an affidavit.
Mediation creates a different environment.
The Supreme Court in Moti Ram (D) through LRs v. Ashok Kumar, (2011) 1 SCC 466 underscored the confidential nature of mediation proceedings. The Court explained that if mediation fails, the mediator should not disclose what was discussed, proposed or negotiated; the report should simply state that mediation was unsuccessful.
That confidentiality is not a procedural luxury.
It is one of the reasons mediation works.
A husband can make an offer without fearing that the offer will later be treated as an admission.
A wife can express a concern without worrying that it will become ammunition in the next hearing.
A party can say, “Perhaps I was wrong about this,” without immediately handing the other side a paragraph for the next affidavit.
That freedom can be transformative.
The mediator does something the judge cannot
A judge must decide.
A mediator does not.
The judge asks:
What does the law require?
The mediator can ask:
What do both of you actually want?
The difference is profound.
A judge cannot ordinarily redesign the lives of two adults according to their individual preferences.
A mediator can help them design their own settlement.
Perhaps the husband will retain the matrimonial home while making a financial payment to the wife.
Perhaps the wife will relocate with the children while the father receives a carefully structured visitation schedule.
Perhaps both parties will agree to withdraw several proceedings after compliance with mutually agreed conditions.
Perhaps they will agree upon education expenses, medical expenses, holidays, travel, property, jewellery and future communication.
The court may have jurisdiction over each of these questions in different proceedings.
But mediation can bring them together in one conversation.
That is its strength.
Children are often the real beneficiaries
Whenever I sit in a matrimonial mediation involving children, I find myself thinking that the two adults are negotiating more than their own future.
They are negotiating the emotional environment in which their children will grow up.
A child should not have to become the courier between two lawyers.
Nor should a child have to learn which parent won the last hearing.
The legal system understandably focuses upon custody, visitation and welfare. But parents can often agree upon practical arrangements that a court, bound by the material placed before it, may not be able to design with the same degree of flexibility.

i. School events.
ii. Birthdays.
iii. Festivals.
iv. Summer vacations.
v. Medical emergencies.
vi. Foreign travel.
vii. Telephone calls.
viii. Video calls.
ix. Grandparents.
x. Education expenses.
These may sound like small matters when compared with the language of a divorce petition.
They are not small matters to a child.
Mediation permits parents to discuss these details in a manner that is often far more constructive than competing applications for interim relief.
Supreme Court mediation can be especially useful in multi-proceeding disputes
There is another practical reason why mediation at the Supreme Court level can be valuable.
By the time a matrimonial dispute reaches the Supreme Court, there may be litigation in several courts and jurisdictions.
The Supreme Court has repeatedly referred matrimonial disputes pending before it to its Mediation Centre. In recent matters, the Court has also permitted the initial interaction to take place virtually and has directed personal attendance where the mediator considers it necessary.
This flexibility is important.
A party living in another State or even another country may not find it easy to repeatedly travel to Delhi.
Virtual mediation can remove some of that practical difficulty.
The Court has also, in appropriate cases, directed mediation with a focus upon the best interests of children and the possibility of reconciliation.
A recent Supreme Court matter illustrates the potential of this process particularly well. After multiple physical and virtual mediation sessions over an extended period, the parties ultimately agreed to reconcile and resume their matrimonial life, with detailed arrangements concerning their children and family relationships.
Not every mediation ends this way.
But the example demonstrates an important point: sometimes parties who appear completely opposed in court are not necessarily beyond the possibility of settlement.
Settlement can mean more than money
One mistake lawyers and litigants sometimes make is to reduce mediation to a discussion about the settlement amount.
That is too narrow.

A matrimonial settlement may include:
i. Divorce by mutual consent;
ii. Permanent alimony;
iii. Maintenance;
iv. Custody;
v. Visitation;
vi. Education expenses;
vii. Medical expenses;
viii. Property arrangements;
ix. Return of jewellery and personal belongings;
x. Withdrawal or appropriate closure of pending proceedings;
xi. Undertakings concerning future conduct;
xii. Arrangements for children;
xiii. Communication protocols; and
xiv. Resolution of other connected disputes.
The monetary component is only one part of the settlement architecture.
Indeed, in many cases, certainty is more valuable than the theoretical possibility of obtaining a larger amount after years of litigation.
I sometimes tell clients:
“You are not negotiating merely over money. You are negotiating over the number of years of your life that you are prepared to spend fighting.”
That tends to make the discussion considerably more serious.
Mediation does not weaken the rule of law
There is sometimes a misconception that settlement is somehow the opposite of justice.
I disagree.
The rule of law does not mean that every dispute must end with a winner and a loser.
The rule of law also means providing people with lawful, fair and dignified mechanisms through which they can resolve their disputes.
A mediated settlement is not justice outside the legal system.
It is justice facilitated by the legal system.
The court remains available if mediation fails.
No party is required to surrender a legal right merely because mediation has been attempted.
And where a settlement is reached, it can be placed before the competent court for appropriate orders and enforcement in accordance with law.
That balance is essential.
Mediation should never become coercion dressed up as compromise.
A settlement is meaningful only when both parties understand it and voluntarily agree to it.
Not every matrimonial dispute should be mediated
As an advocate, I would be equally concerned if mediation were treated as a universal solution.
There are cases in which mediation may be inappropriate or may require particular safeguards.
Where there is serious violence, coercion, intimidation, abuse or a significant imbalance of bargaining power, the process must be approached with great care.
A person should never be pressured into accepting an unsafe or unjust arrangement merely because everyone wants the case to end.
Similarly, allegations of criminal conduct cannot simply be wished away because the parties have been sent to a mediation centre.
The court must remain vigilant.
Mediation is a tool.
Like every legal tool, its value depends upon how intelligently it is used.
The lawyer’s responsibility is greater than simply negotiating a number
This is where the role of the matrimonial lawyer becomes particularly important.
A lawyer must know the law well enough to explain the client’s legal position honestly.
But the lawyer must also know the difference between a legally possible outcome and a practically sensible outcome.
Sometimes the client’s strongest position is precisely what makes settlement possible.
At other times, an exaggerated assessment of one’s case can make settlement impossible.
The advocate’s responsibility is therefore not merely to say, “You will win.”
It is to say:
“This is your legal position. These are your risks. This is likely to take time. This is what you may gain. This is what you may lose. And this is what a negotiated settlement can give you today.”
That is not compromising one’s duty to the client.
It is practising law responsibly.
The best settlement is not always the one that looks best on paper
After years of appearing in matrimonial matters, I have become increasingly cautious about the word “victory.”
A decree may declare one party successful.
But suppose the victory comes after eight years.
The children have grown up.
The retirement years have been consumed by litigation.
The parents who initially intervened in the dispute are no longer alive.
A substantial portion of the family’s savings has been spent on litigation.
The parties still cannot speak to each other.
Was that really a victory?
Perhaps.
But perhaps not.
Mediation offers another definition of success.
Success may mean that the parties know exactly what their financial obligations are.
Success may mean that the children can meet both parents without being caught between them.
Success may mean that fifteen pending proceedings are reduced to one comprehensive settlement.
Success may simply mean that two people who can no longer live together finally agree on how to stop hurting each other.
The Supreme Court’s role is therefore significant
When the Supreme Court refers a matrimonial matter to mediation, it is doing more than postponing a hearing.
It is creating an opportunity.
The Court has recognised that disputes arising from strained family relationships are particularly amenable to ADR, and it has repeatedly used its mediation mechanism to explore amicable resolution in matrimonial cases.
That judicial approach is consistent with the statutory philosophy of the Family Courts Act and the broader legislative movement towards institutional mediation.
The Mediation Act, 2023 further strengthens that policy by recognising mediation as a formal component of India’s dispute-resolution architecture, including in family and matrimonial matters.
The message is therefore quite clear.
The Indian justice system does not regard settlement as a failure of adjudication.
It regards appropriate settlement as one of the legitimate objectives of justice.
In the end, mediation is about giving people back some control
A courtroom decides.
A settlement permits parties to decide.
That distinction becomes particularly important in matrimonial disputes because the consequences of the dispute do not end with the judgment.
The parties still have to live.
The children still have to grow up.
Financial obligations still have to be met.
Parents and grandparents still have to interact.
And, perhaps most importantly, the parties eventually have to learn how to live separately without allowing the bitterness of the marriage to become the permanent structure of their lives.
That is why I believe Supreme Court mediation can be exceptionally effective in matrimonial matters.
It does not diminish the authority of the Court.
It does not dilute the law.
It does not ask a victim to surrender justice.
It does something more subtle and, in appropriate cases, more valuable.
It gives the parties one final opportunity to replace a judicially imposed ending with a future they have themselves negotiated.
And sometimes, after years of watching matrimonial disputes consume people, I think that is the most meaningful form of justice the legal system can offer.
The rule of law is not merely about the power to decide who is right.
It is also about creating institutions through which human beings can resolve conflict with fairness, dignity and restraint.
In matrimonial law, where the dispute involves not merely property or contracts but memories, children, emotions and the future lives of families, that principle deserves particular respect.
A good judgment may end a case.
A good settlement can sometimes end the war.

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