Delhi High Court Cites Religious Texts, Says Full Proof Mediation Process Will Go Long Way In Liberating Old Judicial Process

The Delhi High Court has said that in the modern days' realities and demands, a full-proof mediation process will go a long way to liberate the lifestyle of the “old judicial system of resolution through litigation” towards a “new lifestyle of resolution through mediation.”

“Whether in the Courts of law or working from the office, or mediation and arbitration rooms, the lawyers have proved that the partnership between the 'lawyer power' and the 'judicial power' have brought the functional transformation of jurisprudence whether in litigation or mediation,” Justice Swarana Kanta Sharma said.

Referring to various religious texts like Mahabharata, Bhagwat Gita, Holy Bible, Quran, and Arthashastra, the court said that there is not only British or other foreign jurisprudences alone but “unplundered wealth” of ancient Indian judicial and mediation jurisprudence.

It added that there should be yoga i.e. “yog of statutory law in the Court and the compromise law in mediation centre”, observing that true justice and intent of a legislation will lose its soul if we cease to adhere to the core principles of mediation.

The court made the observations while dealing with a father's plea, who was estranged from his wife, seeking revival of his complaint under the POCSO Act against a near relative on his two minor daughters after seven years. One of the daughters had attained majority and the other was 17 years old.

The special court had referred the complaint to mediation on the basis of statements made by the father and mother of the minor victims that they wanted to compromise the matter. In the mediation centre, the matter was settled on the basis of which the court had closed the complaint filed under the POCSO Act.

While rejecting the plea, the court held that the offences under POCSO Act, which are non-compoundable in nature, cannot be referred to mediation or be settled or compromised through mediated agreements.

Observing that the trial court referred the case to mediation by ignoring all principles of mediation and judicial precedents, the court said that equally shocking was the fact that a mediated settlement agreement was also entered into between the parties whereby the husband and wife had agreed to settle their matrimonial disputes.

The court said that there cannot be any connection between the matrimonial dispute between the husband and his wife and the sexual abuse of his children by a third party which he himself compromised in a mediation settlement.

“It is at times, unpleasant and distasteful for a judge while adjudicating a case to note that parents can use the provisions of POCSO Act to settle their own scores, and equally disturbing is to realise that in relationship of a parent and a child, instead of emotion, care, love, affection for their children, the estrangement between husband and wife and their legal battles overcome the earlier,” the court said.

It added: “This Court, however, is of firm and considered view that it cannot be a party to exhibit insensitivity by ordering to reopen chapter of lives of the minors, one of whom has now attained majority and the other is 17 years of age, are not party to re-opening of their complaint, and thereby re-opening the wounds which they have closed in their memory.”

While concluding, the court annexed to the judgment links for quick references on mediation, including the Supreme Court's Mediation Training Manual of India, Mediation Training Manual for Awareness Programme, Mediation Training Manual for Capsule Course, Delhi High Court Mediation and Conciliation Centre - SAMADHAN as well as relevant case laws.

“A copy of this judgment be forwarded, by learned Registrar General of this Court, to Incharge, Delhi High Court Mediation and Conciliation Centre (SAMADHAN) as well as concerned In-charges of all the Mediation Centres in all District Courts of Delhi, for taking note of its contents and for further circulation among all learned mediators. A copy be also forwarded to Director (Academics), Delhi Judicial Academy for taking note of its content,” the court said.

Counsel for Petitioner: Mr. Rajat Wadhwa, Ms. Dhreti Bhatia, Mr. Gurpreet Singh, Mr. Nikhil Mehta and Mr. Himanshu Nailwal, Advocates

Counsel for Respondents: Ms. Rupali Bandhopadya, ASC for the State; Mr. Gitesh Aneja and Mr. Lakshay Kumar, Advocates for R2 & 3

Title: RAJEEV DAGAR v. STATE & ORS.

Citation: 2024 LiveLaw (Del) 275

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