AI generated imageNEW DELHI: The Calcutta high court, on July 20 set aside a trial court order that dismissed a couple's joint plea for divorce by mutual consent simply because they didn't show up for mediation. The court made it clear that mediation only works if both sides agree to it and it cannot be forced on anyone, and refusing to attend it can't be used as a reason to dismiss a divorce case.Why did the trial court dismiss the mutual consent divorce plea?According to the court order, the couple had jointly filed for divorce by mutual consent under Section 28 of the Special Marriage Act, 1954. During the case, the trial court directed them to appear before a mediator which they did not do.When the matter came up again, the trial court noted that its mediation order had been ignored and called the conduct of the parties and their lawyers "not at all praiseworthy." Saying it would show no "soft attitude" toward them, the trial court dismissed the entire divorce case for not following its direction.The couple then appealed to the Calcutta high court, arguing that mediation is voluntary by nature and since they had already agreed to divorce each other, skipping mediation couldn't be a valid reason to reject their plea.Can mediation be made mandatory in divorce cases?A bench comprising Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya agreed with the couple and strongly criticised the trial court's approach, calling it "completely de hors the law."The bench explained that under Section 89 of the Code of Civil Procedure, which also applies to matrimonial cases, a court can send parties to mediation only if both of them agree to it. Both spouses have to be willing — the court cannot force them into it."Under the said provision, if there are elements of settlement involved in the dispute raised in a suit, subject to the agreement of the parties (and only subject to such agreement), the court can send the matter for alternative dispute resolution, either by arbitration, conciliation, mediation or judicial settlement, including Lok Adalat or otherwise. However, the consent of both parties to go for mediation is a sine qua non for referring the matter to mediation and the parties cannot be forced against their Will to go to mediation," the bench observed.The court also pointed out a key difference between contested divorce cases and mutual consent cases. In contested cases, courts do try to encourage the couple to reconcile. But in mutual consent cases, both spouses have already agreed to separate, so there's nothing left to settle or reconcile. Because of this, the court cannot insist that such couples go through mediation."The court, in a matrimonial matter, must also explore the avenue of reconciliation between the parties in a regular matrimonial suit, but in an application for divorce by mutual consent, there is little or no scope for adjudicating the disputes between the parties on merits. If the parties do not agree, there is no scope of reconciliation or mediation at all and a mandatory recourse to mediation cannot be forcibly thrust upon them by the court," it further said.The bench said the trial court had completely misunderstood the law, and called its reasoning flawed."The learned trial judge proceeded on a palpable misconception of law that it was the mandatory duty of the parties to go to mediation and since the parties did not comply with the direction to go to mediation, which was forcibly thrust upon them by the court, the application for mutual consent divorce was itself liable to be dismissed. Such conception of the law is absolutely perverse and contrary to basic legal tenets," the court concluded.The high court allowed the appeal, cancelled the trial court's order that had dismissed the case, and sent the matter back for a fresh decision, to be completed within the timeline set under the Special Marriage Act. It also said that no one needs to wait for a certified copy of the judgment — the trial court and both parties can act on the digital copy right away. No costs were imposed.