Calcutta high court clarifies that mediation cannot be forced in mutual consent divorce proceedings

Calcutta High Court emphasizes that mediation cannot be mandated in mutual consent divorce cases, asserting the importance of voluntary participation.

Citation: Danish Karim v. Ranjana Chowdhury, F.A.T. 22 of 2026, IA No. CAN 1 of 2026, decided on 20 July 2026, Calcutta High Court.

In a significant ruling delivered on 20 July 2026 in Danish Karim v. Ranjana Chowdhury (F.A.T. 22 of 2026), the Calcutta High Court reaffirmed an important principle governing matrimonial disputes: mediation is a voluntary process and cannot be imposed upon parties seeking divorce by mutual consent. The judgment provides much needed clarity on the interplay between Section 28 of the Special Marriage Act, 1954 and Section 89 of the Code of Civil Procedure, while also underscoring that procedural directions cannot override substantive legal rights.

The dispute arose after the husband and wife jointly approached the trial court seeking dissolution of their marriage by mutual consent under Section 28 of the Special Marriage Act, 1954. During the proceedings, the trial court directed both parties to participate in mediation. However, the parties did not appear before the mediator. Treating this as a deliberate violation of its order, the trial court not only criticized the conduct of the parties and their counsel but also dismissed the matrimonial suit itself solely on the ground that the direction to undergo mediation had not been complied with.

Aggrieved by this decision, the parties approached the Calcutta High Court. Notably, both the appellant and the respondent supported the appeal and jointly submitted that the dismissal of their mutual consent divorce petition merely because they did not attend mediation was legally unsustainable.

The High Court found serious flaws in the reasoning adopted by the trial court. It observed that the court had proceeded on an erroneous assumption that participation in mediation was mandatory. The Bench categorically held that such an understanding was contrary to the settled legal framework governing alternative dispute resolution.

Referring to Section 89 of the Code of Civil Procedure, the Court explained that while civil courts possess the power to refer disputes for alternative dispute resolution, including mediation, such referral is fundamentally dependent upon the willingness and agreement of the parties. Mediation is designed to facilitate voluntary settlement and not to compel unwilling participants into negotiations. The Court therefore reiterated that the consent of both parties is a sine qua non for referring a matter to mediation and that parties cannot be compelled to participate against their will.

The Court also distinguished between contested matrimonial disputes and petitions for divorce by mutual consent. In ordinary matrimonial litigation, where allegations and counter allegations exist, courts are expected to explore the possibility of reconciliation before deciding the dispute. However, where both spouses have already jointly decided to dissolve their marriage by mutual consent, there is ordinarily little scope for adjudicating disputed issues or compelling reconciliation through mediation. Insisting upon mandatory mediation in such circumstances would unnecessarily delay proceedings and defeat the very object of mutual consent divorce.

Strongly disapproving the approach adopted by the trial court, the High Court described its interpretation of the law as completely contrary to basic legal principles. It observed that the failure to attend mediation could not, by itself, render a petition for mutual consent divorce liable to dismissal. The Court therefore allowed the appeal, set aside the order and decree passed by the trial court, and remanded the application under Section 28 of the Special Marriage Act for fresh consideration in accordance with law within the statutory timeline prescribed under the Act.

The judgment reinforces the voluntary nature of mediation in the Indian legal system. Although courts are encouraged to promote amicable settlement wherever possible, mediation cannot become a compulsory procedural requirement, particularly where both spouses have already reached a conscious and informed decision to end their marriage. The ruling also serves as a reminder that judicial discretion must always operate within the framework of statutory provisions and established legal principles.

The decision in Danish Karim v. Ranjana Chowdhury is likely to guide matrimonial courts in ensuring that procedural directions do not become obstacles to the effective exercise of statutory rights. By reaffirming that mutual consent remains the foundation of both mediation and divorce under Section 28 of the Special Marriage Act, the Calcutta High Court has strengthened the principle that consensual legal processes must remain free from unnecessary judicial compulsion.

Citation: Danish Karim v. Ranjana Chowdhury, F.A.T. 22 of 2026, IA No. CAN 1 of 2026, decided on 20 July 2026, Calcutta High Court.