By: Mukul Sharma, Practicing Advocate at Supreme Court of India and High Court of Delhi, also a PhD Scholar at Bennett University +91-9811067617.
This article presents the findings of research conducted by the author, which are part of an extensive study detailed in his ongoing thesis.
New Delhi: In the quiet corridors of Delhi’s Family Courts, a significant contradiction unfolds—a contrast between India’s progressive legal framework advocating women’s rights and the deeply entrenched patriarchal practices in mediation processes. A recent study, adopting a feminist legal perspective, has critically examined these mediation practices, revealing that they often compromise women’s rights to equitable settlements in matrimonial disputes.
The study argues that although mediation is intended as a neutral and alternative dispute resolution mechanism, it frequently prioritizes marital reconciliation over women’s rights to a dignified separation. This approach often leads to women being pressured into unfair settlements in cases of divorce or domestic abuse. Through a mixed-methods approach involving qualitative analysis of mediation proceedings, case law reviews, and interviews with stakeholders—including litigants, mediators, and family court advocates—the research highlights a concerning trend: mediators perpetuating gender biases by striving to “preserve the family” rather than ensuring fair justice.
Comparative legal analysis with jurisdictions such as the United Kingdom, Australia, and Canada has underlined the necessity of incorporating feminist legal perspectives and psychological expertise in mediation practices. Such measures would ensure that mediation is truly gender-sensitive and capable of addressing the unique challenges faced by women in matrimonial disputes.
The findings suggest that mediation outcomes often differ for women based on factors like socioeconomic status, legal representation, and psychological support. This disparity underscores the need for structural reforms in the training of mediators. The study advocates for mandatory psychological support and feminist training for mediators, alongside establishing robust legal safeguards to prevent coercion in settlements.
The insights from this study call for a transformation in the narrative of mediation in matrimonial disputes, advocating for a shift from merely resolving disputes to prioritizing women’s autonomy, dignity, and substantive justice. By bridging the gap between women-friendly legal provisions and the patriarchal functioning of mediation, the research aims to reframe mediation in divorce cases as a process that also prioritizes women’s rights over mere dispute resolution.
This critical examination opens up a broader discourse on gender justice and suggests that real change will require not just amendments in law but a reevaluation of the practices and attitudes that govern legal proceedings in matrimonial disputes. The study’s findings have sparked a call for action among legal professionals and activists to push for a more equitable legal practice that respects and upholds the rights of all individuals involved in matrimonial conflicts.