The Calcutta High Court has ruled that parties seeking divorce by mutual consent cannot be compelled to undergo mediation against their wishes. Setting aside a trial court's order that dismissed a joint divorce petition solely because the couple did not attend mediation, the Division Bench held that such an approach was contrary to law and based on a misunderstanding of the legal framework governing mediation.
Background of the Case
The appeal was filed by Danish Karim against an order passed by the Additional District Judge, First Court at Sealdah. The trial court had dismissed the couple's joint application for divorce by mutual consent under Section 28 of the Special Marriage Act, 1954, observing that they failed to comply with its earlier direction to appear before a mediator. The respondent, Ranjana Chowdhury, supported the appeal and also requested that the impugned order be set aside.
Court's Observations
The Division Bench of Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya found that the trial court had wrongly assumed mediation was mandatory. The High Court explained that while courts may refer disputes to mediation under Section 89 of the Code of Civil Procedure, such a reference depends upon the consent of the parties.
The Bench observed,
"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 judges further noted that a mutual consent divorce stands on a different footing from a contested matrimonial dispute. Where both parties have already agreed to dissolve the marriage, compelling them to participate in mediation serves little purpose.
Criticising the reasoning adopted by the trial court, the Bench observed that dismissing the divorce petition merely because the parties did not attend mediation reflected a "palpable misconception of law" and was "absolutely perverse and contrary to basic legal tenets."
Decision
Allowing the appeal with the consent of both parties, the High Court set aside the trial court's order dated January 15, 2026, along with the decree passed on the same day. The Bench remanded the application for divorce by mutual consent to the trial court for fresh disposal in accordance with the Special Marriage Act, 1954, within the statutory timeline.
It also directed that the parties and the trial court could act on the server copy of the judgment without waiting for a certified copy.
No order was passed as to costs.
Case Details
Case Title: Danish Karim v. Ranjana Chowdhury
Case Number: F.A.T. 22 of 2026 (IA No. CAN 1 of 2026)
Judge: Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya
Decision Date: 20 July 2026
