FROM THE FAMILY COURT OF PALAMPUR, HIMACHAL PRADESH

IN
CIVIL SUIT NO: 111 OF 2018

DATE OF ORDER OF FAMILY COURT : 5TH MAY 2018

MRS. SAKSHI SINGHANIA.....................................................................................PLAINTIFF

VS.
MR. ANMOL PRABHAKAR...................................................................................DEFENDANT

CORAM:
HON’BLE MR. RAHUL VERMA (FAMILY COURT JUDGE)
FOR THE PLAINTIFF: ADV. MR. ABHIMANYU
FOR THE RESPONDENT: ADV. MR. PRATEEK SHARMA
AS MEDIATOR : MR RAJESH KUMAR (RETD. CIVIL JUDGE)

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 Good Morning all, it’s a nice weather outside and also good to see you both and your
counsels here. Before entering into the process let me introduce myself. I am Mr.Rajesh Kanna
retired civil judge. I had my service records of 25 years as a judge in family court and also gone
through many alternate dispute resolutions mainly as mediator. Hope you guys had your
breakfasts and I am your mediator today am here to help u out to resolve your problems and get a
solution to your problems. In order to help you to resolve the problem quickly and elegantly
kindly say all the truth and stuffs you know, do not hide anything. It’s glad that you have
selected alternate dispute resolution than litigation as said by the great leader Abraham Lincoln,
Discourage litigation. Persuade your neighbors to compromise whenever you can.

Peace cannot be kept by force; it can only be achieved by understanding. The

purpose of this mediation session is to understand your problem and get a solution that is
acceptable to both of you. Before moving into the session I would like to tell you about the
mediation process and the advantages of mediation for your understanding

Mediation is often confused with meditation; Mediation has nothing to do with your
mental health. It is a one type of alternate dispute resolution i.e. ADR. ADR is nothing but
different mechanisms available to every individual to resolve their problems without litigations.
It is not that every problem needs to be concluded before the court, meanwhile some problems
can also be concluded by making peace with the other party.
This process is also one such where as a mediator my role is to communicate between
you both and thus helping you both to resolve the problem by yourself by selecting the options
available and hence keeping peace with each other.
In this process it is not I, the mediator will choose the outcome but you the parties will
make your own decision. I will help you to choose the decision by reframing issues, showing
options available, suggesting the best but you are only going to choose it not me.

Advantages of mediation:
As a mediator it is my duty to show you the benefits of this process and howfar it is better than
other processes. I have to thank you guys for accepting this best mechanism to resolve your
disputes. The major advantages you avail by choosing this mechanism are as follows

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 1) Mediation process costs minimal than civil petition before the court like the counsels are
not required in mediation unlike a civil court to represent yourself but it is party’s choice
to represent themselves or through a counsel before the mediator.
2) Mediation process gets completed quickly than you can actually imagine unlike a civil
case which takes days, months or even years to complete before the court. So that you
can quickly relieve from this issue and participate in your day to day activities with peace
of mind.
3) In this process you the parties can express your complete opinion before me eventhough
you represent yourself through the counsel unlike in the court where you can represent
only through the counsel present
4) This process is purely private and hence it will not be subjected to any media attention
which affects your repetition
5) In this process the decision making power is not with me but with you the parties. You
both can arrive to any decision at any time.
6) This process is completely voluntary and either party is at full liberty to terminate the
process if not satisfied with it.
7) The resolution obtained is mainly practical instead of confusing statutes but it will abide
by the statutes.

As both the parties signed the preliminary agreement, I shall proceed with the case1.
We shall move into the problem between you both. As both the parties have submitted your
written contentions we shall discuss the problem according to the issues framed by the parties.

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annexure 1

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Problem in this case:

Mrs. Sakshi Singhania (plaintiff) and Mr. Anmol Parbhakar (defendant) were both
married in the city of Palampur. They were happily married and were having one child who is a
baby girl. After two years of their marriage, disputes on various issues started between both
husband and wife. And after two years of marriage they started living separately (they are living
separately more than one year). SS thought that this marriage wouldn’t work anymore and
therefore she filed a divorce petition in the FAMILY COURT AT PALAMPUR under section
13(2) of Hindu Marriage Act, 1955 and she also claimed maintenance under section 18 of Hindu
Adoption and Maintenance Act 1956, and section 125 of Code of Criminal Procedure, 1973. The
maintenance amount claimed in the divorce petition was 50,000/ per month. SS claimed that the
income of AP is enough for paying this amount of maintenance. As per the facts of the case, SS
informed on first hearing that AP drinks too much and after drinking he used to beat her very
badly. On the Second hearing (5th May 2018) of the court, the family court judge adjourn the
proceedings and refer the case to the mediator under section 9 of Family court act, 1984.

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 Myself as a mediator has conducted the open session, one on one talk between the parties
and closed session. Both the parties have submitted their final contentions through their attorneys
in written format. The main issues framed by both the parties are of following categories

1) Divorce

2) Maintenance

3) Custody

I as a mediator will give the best choice available to both the party in each issue. The parties
are at full liberty to either accept or reject the choice proposed by me.

1) Divorce

In the present case Mrs. Sakshi Singhania and Mr. Anmol Parbhakar were both
married in the city of Palampur as per the conditions and rituals of the Hindu marriage act. Valid
conditions given under sec 52 of the Hindu marriage act, 1955 are fulfilled and so it is a valid
marriage.

According to Vedas a Hindu marriage is an indissoluble union till eternity3, under the
ancient Hindu culture of marriage, a women even after the death of the husband cannot dissolve
the marriage tie4, but under the present Hindu law a marriage can be dissolved by the wife if she
is treated with cruelty and if she is not treated well in the matrimonial home. There are various
grounds for divorce for wife and husband under Hindu marriage act.

In the present case the wife has claimed for divorce on the basis of cruelty done to her by the
husband.

Cruelty is an inhuman act which leads to physical, mental harm and injury to another
person5. The concept of cruelty has varied from time to time, from place to place and from
individuals to individuals depending upon the social status and economic conditions6.

2
sec 5: Conditions for a Hindu marriage.
3
Laws of marriage and divorce - H.K. Saharay 5th edition
4
ibid
5
Smt. Gurpreet Kaur vs Shri Rajeev Singh
6
JialalAbrol v. Sarladevi, AIR 1978 J&K 69

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 Cruelty under Hindu marriage act: cruelty under sec 13(1) (ia) of the Hindu
Marriage Act, marriage can be dissolved on the ground of cruelty by one spouse to other. Cruelty
may be physical or mental, intentional or unintentional7. The term cruelty means when one
spouse has so treated the other and manifested towards him or her so as to cause such feelings
towards him or her as to cause in her or his mind reasonable apprehension that it will be harmful
or injurious to live with the other spouse8.

In the present case through the arguments made by both the parties it is clear
that the wife has undergone cruelty due to the husband which forced her to withdraw from his
society and also to apply a petition for divorce. From the facts it is clear that the husband is a
drinker and he used to beat her after getting drunk. Both were happy for the past two years of
marriage it is only a ego clash between both which made the husband to get drunk and beat his
wife. Hence the problem is not with the husband but with his alcohol consuming habit. The wife
contended that her husband uses to beat her after drinking but she failed to show proper evidence
in this regard. In case if there is immense cruelty the wife would be able to show evidence in this
regard but failure to do this impliedly shows that the cruelty done is very minimal.

The apex court observed that divorce is not generally favored or encouraged by courts and it is
permitted only in serious and grave cases9.

With the observations made I suggest that wife is entitled for divorce but such divorce
should not affect the future of the child and it is a time consuming process too and also she must
answer the court for deserting his husband and giving mental pressure which could turn the case
upside down.

7
Naveen Kohli vs Neelu Kohli : AIR 2006 SC 1675
8
Surendra Pal Singh Pawar vs Smt. Bala.
9
Swarajya Lakshmi v. Dr. G.G. Padma Rao

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 2) Maintenance

The wife also claims maintenance for her i.e. the money needed for her survival without the
co habitation with the husband

DEFINITION OF MAINTENANCE

“Maintenance” includes—10
(i) in all cases, provision for food, clothing, residence, education and medical attendance and
treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her
marriage;
As per the Hindu law it is the right of the wife to be maintained by her husband11. The obligation
of the husband to maintain her wife arises from the very existence of their relationship by
marriage12. The right to maintenance is often exercised when the smooth running of the life
between husband and wife were becomes impossible.

GROUNDS FOR AWARDING MAINTENANCE:

Maintenance can be claimed by the wife through a petition. Maintenance can be split into for
the wife and for the child. There are many grounds for maintenance13
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any other
infectious disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he habitually resides
with the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion;
g. Any other cause justifying her separate living;

10
sec 3(b) of the Hindu adoption and maintenance act, 1956.
11
Vimalben Ajitbhai Patel vs Vatslabeen Ashokbhai Patel : AIR (2008) 4 SCC 649.
12
Lakshmi Ammal And Ors. vs Narayanaswami Naicker.
13
sec 18 of Hindu Adoption and Maintenance Act

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 The most important right which a wife gets out of her marriage is maintenance. Immediately
after the marriage the husband is entitled to maintain his wife, of course, within his means. A
husband is personally liable for the wife’s maintenance. The right of maintenance is often
exercised when the smooth running of the life between the husband and the wife comes to an
end, the holy union of the two souls stands torn apart because of the growing disharmony
between the two.
In the present case the wife contends that she suffered from cruelty by her husband
which forced her to withdraw from his society and live separately with her child. Hence she asks
for maintenance of Rs.50, 000 per month.
The husband defended that it is she who voluntarily withdraw from his society and
left him alone without his child. And also she was able to live separately for more than one year
without her husband help which shows that she has enough fortune to live her life all alone
without his maintenance. But the husband also says that he would give maintenance to his child
quantum of Rs.20,000 per month on acceptance of condition prefixed there in. It is also noted
that the husband is also at liability to maintain his old aged parents.

From the above observations it is clear that the husband is at liability to provide
maintenance for his wife and daughter. But the quantum proposed by the wife is too high hence
there must be some negotiation in the quantum proposed by her. Considering the income of thje
defendant and the needs of both the parties, I suggest that the quantum of maintenance must be
Rs. 25,000

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3) Custody

The couples are blessed with a girl child. The girl child is a new born baby, she is
under the custody of her mother. But this does not mean she is separated from her father. The
father has got every right to visit her and take part in her every activities. Hence the father must
be given visitor rights and the custody is given to mother.

And all these stated by me are one of the options available, if you both are not going
to make peace with each other. As a litigant you both win at one point of time. But the baby child
loses her repetition due to your winning? Is this what you both are going to gift to your daughter?
Instead by the facts of the issues present before me I would suggest the following as a best result,

1) You both lead a happy life for the first two years of marriage why can’t you do that
throughout your life with your daughter?
2) The problem for the husband is that misunderstanding with wife
3) The problem for the wife is husband used to beat her badly
4) The wrongs done by the husband are beating his wife, not having a healthy
relationship, drinking alcohol
5) The wrongs done by the wife are not having a healthy relationship, not trying to solve
the problem, forced the husband to drink liquor, desertion
6) Then what is the wrong done by the baby? It is correct to say that it has born to a
wrong couple?

Negative impacts over child

The couples gets divorced usually leaves a bad example for the child. The child will be
under severe imbalance between the father and the mother who to decide. But in the present case
the child is a baby which didn’t even speak hence the custody will be given to the mother which
gives her advantage of leaving a bad impression over the father by the baby as day passes by. As
the day passes the child while entering school she will not be able to present both her parents in
front of school authorities as all the other students would do which leaves her under depression
and a bad remark over her. IS this right?

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Hence from the above contentions and considering the benefit of your child I would suggest the
following
1) The main source of the problem is the drinking habit by the husband hence I would
suggest the wife to give him a chance to give up his drinking habit.
2) The husband must be sent to rehabilitation centre for giving up his liquor drinking habit
3) In the mean time the wife shall attend a session with a counselor to overcome her stress
and bad past memories.
4) In case there is a problem between you both kindly sit along and talk it and solve it
instead of moving aside
5) After the respective finishing of the above conditions both of them could co habitat with
each other for 6 months and if there is no misunderstandings they can continue to co
habit.
6) An agreement has been made in this regard both the parties if accepting my suggestion
are required to sign it to make it enforceable.

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 PRESLIMINARY AGREEMENT

This is an agreement between the parties Mr. Anmol Parbhakar(Husband) and his Mrs. Sakshi
Singhania(Wife) for the mediation process as per the honble family courts order in case no: 111
of 2018.

1. Nature of Mediation

The parties hereby appoint Mr. Rajesh Kanna as mediator for their negotiations. The parties
understand that mediation is an agreement-reaching process in which the mediator assists parties
to reach agreement in a collaborative, consensual and informed manner. It is understood that the
mediator has no power to decide disputed issues for the parties.

2. Scope of Mediation

The parties understand that it is for the parties, with the mediator's concurrence, to determine the
scope of the mediation and this will be accomplished early in the mediation process.

3. Mediation Is Voluntary

All parties here state their good faith intention to complete their mediation by an agreement. It is,
however, understood that any party may withdraw from or suspend the mediation at any time, for
any reason.

The parties also understand that the mediator may suspend or terminate the mediation if s/he
feels that the mediation will lead to an unjust or unreasonable result, if the mediator feels that an
impasse has been reached, or if the mediator determines that s/he can no longer effectively
perform his/her facilitative role.

4. Absolute Confidentiality
The mediator i.e I assure you that the facts said to me will not be leaked by me outside
anywhere in the process.

5. Full Disclosure

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 Each party agrees to fully and honestly disclose all relevant information and writings as
requested by the mediator and all information requested by any other party of the mediation if
the mediator determines that the disclosure is relevant to the mediation discussions.

6. Mediator Impartiality
The parties can refuse this mediation on the basis of bias over me as a mediator. Mediation is
done by a neutral third person as a mediator .Hence you both are at full liberty to terminate this
process if you think I am biased in any manner.

7. Litigation

The parties agree to refrain from pre-emptive maneuvers and adversarial legal proceedings
(except in the case of an emergency necessitating such action), while actively engaged in the
mediation process.

8. Enforceability
The parties after coming to a solution are required to sign an agreement between them stating
the proposed solution in the agreement to make the solution enforceable before the court of law
and the breach of which imposes liability over that party as per the law and agreement.

9. Mediation Fees

The parties and the mediator agree that the fee for the mediator shall be rs 500 per hour for time
spent with the parties.

Dated this 15 day of June, 2018.

PARTIES

HUSBAND

WIFE

MEDIATOR

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 Resolution Agreement

This is an agreement between the parties Mr. Anmol Parbhakar (Husband) and his Mrs. Sakshi
Singhania (Wife) for the enforcing effect of solution obtained through this mediation process
suggested by the honorable family court of Palampur on case no: 111 of 2018.
The solution obtained through this mediation process is categorized under following clauses.

1) Both the husband and the wife accepts to co habit for 6 months with each other and also
continue the same if there is no problem between them
2) The husband accepts to find a solution to overcome his liquor drinking habit hence he will
also be sent to a rehabilitation centre to pursue his goal and must obtain a certificate from the
centre for successful completion.
3) The wife in the meantime will be attending a mental counselling session with a certified
physiatrist to overcome her mental stress to help her to start a fresh life.
4) The divorce petition will be withdrawn from the family court by the wife
5) In case if there is any problem between them in future neutral third person mediation will be
arranged by husband and both must attend it without fail.
6) Failure to breach of any clause in this agreement is liable to make right the other party as per
his contention as per law of land.

PARTIES

HUSBAND

WIFE

MEDIATOR

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