Counseling - Mediation in Domestic Violence Cases Can Be Initiated Without Court Order - Bombay HC Lays Down Guidelines

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IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION

SUO MOTU PUBLIC INTEREST LITIGATION NO. 104 OF 2015

Dr. Jaya Sagade, Director ...PetitionerVs.

The State of Maharashtra ...Respondent

Ms. Jaya Sagade, Petitioner in person presentMs. Ujwala Kajrekar for Lawyers CollectiveMs. Flavia Agnes for Majlis Legal CentreMs. Veena Gowda i/b. Sumangala Biradar for TISS and Stree Mukti SanghatanaMr. V.B. Thadani, AGP for StateMs. Gayatri Singh, Sr. Advocate with Vijay Hiremath for Intervener NGOMr. Mihir Desai, Sr. Counsel with Mr. Chetan Mali for Intervener

CORAM : MOHIT S. SHAH, C.J. & MRS. ROSHAN DALVI, J.

Date of reserving the Judgment: 25th July, 2015 Date of pronouncing the Judgment: 4th September, 2015

JUDGMENT: (Per Mrs. Justice Roshan Dalvi)

1. The petitioner is a service provider under the Protection

of Women from Domestic Violence Act, 2005 (DV Act) as part

of women's study center of the ILS Law College, Pune

Maharashtra (Center) where she serves as Professor of Law.

The center conducts certain workshops for judicial officers in

various Districts of Maharashtra for sensitising judicial officers

and other stakeholders under the DV Act like protection

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officers as also Advocates, academicians and NGOs. The

petitioner submitted suggestions for effective implementation

of the DV Act which are wholesome and practical and with

which none has any complaint.

2. The department of women and child development of

the Government of Maharashtra issued a circular on 24th July,

2014 regarding one of the aspects contained in the

suggestions of the petitioner viz., counselling / mediation

under the DV Act.

3. Whereas the suggestion of the petitioner was that there

is a provision of appointment of Counselors whose primary

duty is preventing the recurrence of violence against women

by using feminist counselling, in practice, cases are referred to

Judges called mediation Judges for mediation and the

services of Counselors remain underutilised. She would

contend that mediation and counselling are not the same in

terms of their objectives and procedures. Hence, she has

urged that Counselor's service need to be utilised to the fullest

extent by the Courts taking up DV cases (DV Courts).

4. She would contend that the impugned circular with

regard to counselling / mediation under the DV Act is

violative of the Article 14 being discriminatory and Article 21

of the Constitution of India being arbitrary and discriminatory


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and absolute in nature. She has sought to challenge the

circular under her letter directed to the Chief Justice of this

Court which has been treated Suomoto as a writ petition and

upon which notices have been issued upon the State of

Maharashtra representing the Women and Child Department

as also the other State Institutions like the police as also

various institutions and organizations concerned and

connected with the issues that arise under the DV Act.

5. The impugned circular dated 24th July, 2014 directs that

only after the case under the DV Act is filed in Court and

directions are given by the Court for counselling or mediation

that counselling or mediation can be carried out and that

outside agencies cannot carry out those activities without the

directions of the Court. The impugned circular specifies that

those agencies are only allowed to inform the aggrieved

woman of her rights, make available medical and shelter

home services to her and encourage her to file a case in the

Court either by herself or through a protection officer. The

circular is stated to have been issued in the interest of

women.

6. Indeed the legislation has itself being enacted for not

only the protection, but empowerment of women and for

preventing violence against her. Specific orders and directions

that may be required by her if she is violated can, of course,


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only be passed by the Courts, more particularly the

Magistrate's Courts in which invariably the initial application

is made under Section 12 of the DV Act (though an

application under the Act can also be made to any other Court

such as the Civil Court, or the family Court, if any application

or petition is pending in that Court under Section 26 of the

D.V. Act).

7. The object behind the circular is required to be

considered when applications are made by a woman who is

domestically violated and the exercise to counsel her and to

mediate between her and her violator (more specifically her

husband, but also her family members and her inlaws in

several cases) could be undertaken. The spirit of the Act is as

much of protecting her as of preventing the violence and

empowering her to have access to justice. For protection and

prevention of the violence counselling has, by experience,

been seen to be an effective antidote.

8. After she has accessed justice, the Magistrate may make

an order, upon her request, or upon seeing her interest in that

behalf. Experience has shown that a long period of time

would elapse after the initial application is made and after the

Magistrate directs counselling and mediation under Section

14 of the Act for any relief to be given to her. In the

interregnum the violated woman may have no remedy in the


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hope that counselling and mediation would yield the

necessary result ending the violence against her. Experience

has also shown that in several of these cases mediation fails.

counselling the woman would, therefore, have served no

purpose. Consequently rules are framed by this Court to the

end that the Magistrate must necessarily pass some order or

direction giving the violated woman some relief so soon as an

application is filed by her under Section 10 of the DV Act, be

it interim or even adinterim, even without notice to the

husband or other violators, if required, in granting her a

modicum of maintenance amount or a relief of injunction in

respect of her residence, the residence of her husband etc.,

after which the direction for counselling or mediation under

Section 14 of the Act could justly be passed. The State,

having framed guidelines to that end would undoubtedly

require some order in favour of the woman to be passed

before needless elapsing of time for counselling or mediation.

To that end the impugned circular would serve the deserved

purpose under the Act. Hence if an application is made by a

woman, an order is required to be passed as illustrated above

and mediation or counselling can then begin. The petitioner

would claim that she would have no complaint against such a

guideline or rule.

9. However the impugned circular does not reflect the

requirement of passing any order in favour of the woman


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upon the case being filed and deals with counselling and

mediation which would be resorted to by women before a

case is filed. This is what all parties before us have termed

“prelitigation mediation / pre litigation counselling”. Indeed

the circular is clear. It is not entirely in terms of the

guidelines issued under the DV Act with regard to counselling

and mediation. counselling and mediation is contemplated

under Section 14 of the DV Act r.w Rule 14 of the rules

framed thereunder.

10. The petitioner as well as various other organizations

which have intervened including Majlis Manch, Lawyers

Collective, TATA Institute of Social Services (TIS), Stree Mukti

Sanghatana (SMS), Bhartiya Stree Shakti (BSS) (interveners)

have submitted their ground level experiences before the

Court. They are largely similar and may be considered

together thus:

(a) There are various service providers under the DV

Act being shelter homes, medical service providers,

counselling centers, family counselling centers, NGOs

etc., some of these are private organizations. Some are

registered under the Act though initially having been

private organizations. They are trained counselors.

counselling is an art as well as science. They counsel

women with a feminist approach since DV Act demands


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such specialised counselling.

(b) The dictionary meaning of counselling in Concise

Oxford English Dictionary Indian Edition at page

326 is advice, especially that given formally – recommend

– give professional help and advice to resolve personal,

social, or psychological problems. The term counselling

is defined in Black's Law Dictionary, Eighth Edition by

Bryan A. Garner at page 374 also as advice or

assistance. The term counselling is explained in

Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd

Edition at page 1092 as an act or process of giving

professionally competent advice.

The concept, therefore, would rule out mere

information. It has been rightly argued before us that if

only information has to be provided so as to direct a

woman to the service providers and to the Court the

agencies would become only “referral” agencies. They

have claimed that they have had experience of

counselling decades prior to the enactment of the Act.

Indeed that is an aspect of which judicial notice is

required to be taken. Their experience and expertise in

the field would certainly be whittled down to clerical

work which cannot be termed “counselling”.

Counselling by its very nature would include advising a

woman of the right course of action to obtain access to


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justice. The requirement of informing the woman about

her rights and various services would be only a very

small part of counselling. Encouraging her to sue may

become counter productive in certain cases.

Hence this impugned circular would show that

the woman cannot be counselled or advised about the

right course of action before she takes recourse to law.

She would, therefore, be bereft of sound advice, which

she would otherwise be a privy to, emanating from

experience of such advisers. No party can be merely

“informed” of their rights and not “adviced” the right

course of action before having access to justice in

Courts of Law. The purpose and import of the DV Act

itself, as a special legislation enacted in favour of

women under Article 15(3) of the Constitution of India,

would degenerate into a mere clerical exercise leaving

the woman, who would otherwise not have any legal

advice, to the vagaries of litigation. That can certainly

not be contemplated to be the avowed purpose of a

socially beneficent legislation.

Indeed the statement of objects and reasons under

the Act dated 13th September, 2005 is to protect the

woman from being victimized by domestic violence and

to prevent occurrences of domestic violence in the

society. It is, therefore, a legislation to arm the woman

from being victimized by violation. It is only counselling


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of specialised persons with expertise in that field that

would empower her to take charge of her life to protect

herself and prevent the violation. Such counselling

would have to be given to the woman ideally long

before she could have contemplated having access to

justice. It should ideally commence when she feels and

apprehends violence against her, be it physically,

sexually, mentally, psychologically or economically and

at least so soon as she becomes the victim of any of

these. The Act has, therefore, decidedly not prohibited

prelitigation counselling. In fact it would have been a

grotesquely insensitive law if it had, prone to challenge

on account of the resultant arbitrariness or

discrimination. Consequently there is no visible breach

of any law more specially the DV Act after a woman is

advised or counselled as to what is best for her. The

conclusion in the impugned circular that the procedure

contemplated therein would not effect her rights and

would do justice to her is, therefore, seen to be without

required 'sentipathy'.

(c ) It is an accepted fact, and of which also judicial

notice is required to be taken that there are numerous

NGOs not registered as service providers under the DV

Act at various levels in the soceity, community, religious

groups beginning with the family, friends, mahila


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mandals, women groups, academic institutions etc.,

who provide family counselling. These are accepted not

to fall within the provision of DV Act and hence would

not come within the mischief of the circular. They

would, therefore, continue advising women, much as

lawyers would do, upon the woman availing of their

services. The State cannot prevent and the impugned

circular has not prevented such NGOs from counselling

women. The NGOs who have been registered as service

providers would, therefore, be treated differently

though performing the same duties equally as the NGOs

not registered under the Act. This would undoubtedly

be discrimination.

(d) It has been the experience of the petitioner as also

all the interveners who have contended before us that

several women do not desire to take recourse to law.

This may be upon justified or incorrect apprehension,

family and social set up from which they hail and

constraints by which their lives may be governed.

Whatever that be, a violated woman must be entitled to

the freedom of choice. It would be for her to decide the

course of action. It is for the NGOs who have the

expertise to provide her the advise. It is for the State to

make available to her legal rights which could be

availed upon an informed choice made by her after


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receiving complete and correct advise / counselling.

This is where a violated woman would negotiate her

own spaces, no part of which can be shut from her.

Consequently there is a lot of substance in the

contention of the petitioner and the interveners that the

circular goes against the grain of the legislation itself

and is not in harmony with its provisions which opt for

peace rather than war.

(e) On the other side of the spectrum must be seen

the right to carry on profession of the trained and

educated counselors much as lawyers would. The legal

question that we would be confronted with is whether

an extention of the circular could legitimately apply to

lawyers. Can the State prevent a violated woman from

being advised or counselled, sensitively or ferociously

by a lawyer competent to practice law in the DV Courts?

The resounding negative answer must legitimately

apply also to counsellors who are trained in counselling

as much as lawyers are trained in law to render their

specialised services upon the violation of the human

rights of the victim. The contention of the petitioner

and the interveners that it would infringe the rights of

the NGOs and the other service providers who counsel

women as much as the women themselves must,

therefore, be accepted.


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(f) The view of the social scenario also merits a

thought. Saving of a marriage before or soon after

violence commences or pervades in a woman's life

would result in continuation of the family bond and

social peace. The provision for special cell for woman

and children in police stations is upon the premise that

even where a criminal offence is committed upon a

violated woman the special cell would treat her

differently in terms of the sensitivity required by her.

The family counselling centers which also render

yeomen services would also be unable to render any

counselling if they are registered under the Act as they

would do if they are not.

(g) The amorphous, anomalous situation that would

unwittingly arise upon the arbitrary and discriminatory

circular of the Government is that if a woman is not

violated she would have recourse to counselling, but if a

woman is violated she would have none. In fact, she

would be in greater need for counselling than a woman

who may have a matrimonial dispute without being a

recipient of violence.

(h) It is contended that various specialized services

provided under the DV Act as in no other legislation


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themselves reflect the need for an aggrieved woman to

avail of those services prior to accessing the Courts. The

shelter homes, medical aid, legal aid are stated to be

multiple entries aside from the conventional route of

litigation. Such services availed of prior to litigation

would be prelitigation services. If a violated woman is

entitled to those services, there is no logic or reason

shown by the State as to why she would not have access

to psychological or social counselling.

(i) The contention that there is no duty or power

conferred upon the service providers to provide

counselling or getting services because the much

desired DV Act provided the destination to the violated

woman to have access to expeditious and simple

procedure in the Magistrate Courts would ignore the

wholesome need of the woman to be correctly guided

through her journey into litigation against her own

family and persons otherwise closest to her. The very

spirit of the legislation would require the service

providers to go that extra mile in negotiating and

providing for her precisely what in the facts of her case

would be the most efficacious remedy – and cases of DV

are like snowflakes.

(j) It has been contended before us, and of which we


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must take note, that when a violated woman accesses

criminal justice, at the first point of entry, which is the

police station, she is compelled to “settle” which

actually results in forfeiture of her rights. It is

contended that the police resort to “mediation” and

“settlement” by calling the husband or advice her

through the police counselling at the social services

branches to file a case of cruelty under Section 498A of

the IPC. It is further contended that she is not

counselled but compelled to “sign consent terms though

it may not be in her interest”. Such practice cannot be

countenanced. Such police practice cannot be accepted

as the mainstream provision of services. A violated

woman must have the last choice. She must be

informed about her right to choice. She must be guided

to the extent of her legal rights. This would need the

specialized feminist approach; it may be protectionist or

empowering. It certainly cannot be surrendering or

yielding.

The process of counselling must, therefore,

essentially take into account the choice of the woman

and is essentially at the instance of the woman when

she accesses the police as also when she accesses the

Counselors. Following as a corollary, is the imperative

requirement that it is only if the woman is amenable to

and accepts that she would negotiate any settlement


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with her spouse that the joint counselling can

commence. We should certainly frown upon any

practice that would instigate, pressurise or force her

into any settlement with the husband on any issue. We

deprecate such a practice if it is followed at police

stations or at any other places as contended by Majlis

Manch showing its ground level experience. Bad

practice cannot make good law. Similarly bad practice

should not unsettle good law. Good practices deserve to

be backed institutionally. A practice which is not shown

to be prohibited or barred in law and in fact all –

pervading is, therefore, required to be supported whilst

laying down guidelines for eradicating bad practices.

Therefore, the remedy lies not in prohibiting the

practice altogether but in rejuvenating it within

reasonably prescribed mechanisms and parameters.

(k) Because certain police officers may act without

sensitivity or even collude with other parties, the other

dedicated police officers and even NGOs and counselors

who, because of their specialized training and services

have been registered under the Act, cannot be similarly

treated. Treating such unequals equally would itself be

discrimination. The remedy is, therefore, in training

and educating as also directing the police officers to

work in unison with the counselors as service


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providers rather than at tendum with them or

arbitrarily and without sensitivity and empathy.

(l) It is contended that the police do not refer cases

to protection officers for proceeding under the DV Act

as they are enjoined to do under the provisions of the

DV Act. The remedy for such default would be in

directions passed against such police officers, but not in

disallowing counselors who render services

diametrically opposite to what is stated to be the service

rendered by police officers. The State itself would do

well to sensitize its police officers rather than to

disallow sensitized services.

(m) The contention that the nonState agencies and

the State agencies are mutually exclusive and fall under

two separate and distinct categories would be

misconceived seen from the stand point of the services

rendered by them rather than their designations. The

distinctness would, therefore, be in the services

rendered by the criminal machinery – the police – and

the social or the civil agencies – the counselors. Hence

the argument that if a woman does not desire to

approach the Magistrate's Court through the registered

channel of the protection officer, the service provider

registered under the Act must refer her to another


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agency which is not a stakeholder under the Act for

settling the matter would be to shift the case and the

burden of the case upon the agency rendering similar

services which that stakeholder itself is competent to

render. No purpose would be served except to push the

woman from pillar to post when she could avail of the

same service at the door step that she has entered.

(n) The distinction sought to be made between NGOs

which are registered service providers and NGOs which

are nonregistered is not a reasonable classification. The

nonregistered NGOs are stated to have graduated to

have been registered as service providers. If after

accumulating experience in the field, the NGOs do not

have the leavey to use their expertise and talents for the

best outcome which they had before, their work would

degenerate. Such a distinction would be wholly

arbitrary and consequently discriminatory. The NGOs

not registered under the Act would continue the work

of prelitigation counselling, which may be

psychological counselling, but the NGOs which are

registered would not be allowed to do so. This would

result in the registered NGOs withdrawing their

registration to be able to conduct the counselling or

other NGOs not seeking registration. The aftermath of

such a scenario would be self defeating and the one not


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contemplated under the legislation. This would

culminate into violating the fundamental right of

carrying on free trade and profession by the registered

Counselors under Article 19 of the Constitution.

(o) The lack of awareness of many women of the

legal rights and position in law is a truism. It is for

that purpose that she needs to be counselled and the

advise that she receives would include the knowledge of

all that the law provides so that she can make the

ultimate choice.

The contention that each woman desiring to be

advised / counseled must be referred to Courts is

against public policy itself. Even the contention that the

settlement by way of consent terms arrived at pre

litigation would not be binding, though correct, is not

the reason for it not being given a try. The arguments

of the interveners would show thousands of cases being

amicably settled. If, however, unfortunately some cases

are not settled, the woman would be nearer the Courts

after a failed experience. As pointed out to us in the

submissions of the Lawyer's Collective, the failed

settlement would itself tantamount to domestic violence

upon which a Domestic Incident Report (DIR) could be

filed under Section 12 of the Act to commence the

judicial process in the Magistrate's Court. Experience


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has shown that there may be initial obstacles and

failures before a lasting solution. The solution may not

be only reconciliation, but amicable separation, which

would end the violence upon the woman. If it is not

achieved prelitigation, it can be achieved post

litigation. It is rightly stated that “a lean compromise is

better than a fat law suit”. This would apply as much to

civil litigation as to violent victimization.

The further contention that counselling is the easy

option for protection officers is to denigrate their role in

a noble service. What is contemplated by a good

settlement is certainly a settlement in accordance with

law when power balancing is done by the counselor or

the mediator between two parties having unequal

bargaining strengths and not an enforced settlement

derogatory to a woman's human and legal rights.

Consequently we cannot accept the contention that the

service providers while acting as gateways to secure

justice would be barriers to women in accessing rights.

(p) Counselling the woman is a onesided calling. It

must end in a positive result. This would require the

opposite party, in most cases the spouse, and his family

members, to be brought before the counselors also to be

consulted so that the two sides could end their disputes

in an amicable solution. This service is what is


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popularly called “mediation”. The mediator creates

options for settlement between the disputant parties.

The various options would essentially end the domestic

violence. It would prevent the woman from further

violence and protect her against further violence. The

option may result in reconciliation or amicable

separation. It is, therefore, that the petitioner has

rightly stated in her suggestion to the Court that

mediation and counselling are not the same in terms of

their objects and procedures. It would, therefore, have

to be seen whether prelitigation mediation which is not

barred under the DV Act is contemplated therein. It is

indeed contemplated as a measure of social justice

under various legislations and policies.

(q) They may be ennumerated thus:

1. Section 89 CPC, which includes mediation and

Lok Adalatas.

2. Order 10 Rule 1A CPC, which shows the ideal

time to refer Civil disputes to mediation.

3. Section 19 Legal Service Authorities Act, 1987,

which relates to establishment of Lok Adalats to

arrive at compromise or settlement.

4. Sections 6 & 9 Family Courts Act 1984

providing for conciliation and settlement of disputes


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between parties to a marriage and other related

parties.

5. Section 498A relating to offences of cruelty

between spouses which could be referred to

mediation and compounded through the High Court

in a writ petition.

6. Prelitigation desks and clinics set up in various

Courts and sociolegal centers.

7. Mahila desk at the police stations.

8. The policy of law as enunciated in judicial

precedents.

The purview of these laws would show the

amenability of the law to encourage amicable resolution

of disputes, civil as also family, rather than any bar to

providing the counselling service which is not expressed

under the legislation. The fact that counselling is

provided would be a pointer to a presumption in favour

of any kind of counselling, prelitigation, litigation or

postlitigation. The only rider is that it would be upon

the volition of the woman and cannot be forced upon

her.

Upon seeing the array of legislation as also

practice of Courts it is inconceivable how in a case of a

woman who has suffered some form of violence her

counselling or even joint counselling with her spouse or


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even with any members of her family cannot be

envisaged or can be taken to have been impliedly

barred or prohibited.

(r) Section 10(1) of the DV Act makes provisions for

legal aid, medical, financial or “other assistance” that is

rendered by any person or institution which would be

eligible to register himself / herself / itself as service

provider. It is legitimately argued that the “other

assistance” would contemplate the inclusion of pre

litigation counselling. Indeed the provision is not

exhaustive and cannot be contemplated to contain the

bar to counselling amongst other services.

(s) We have been given various statistics of the

number of cases settled by amicable separation or by

reconciliation between the parties as also the various

cells and counselling centers which have come up under

the Act. We need not go into those statistics. Suffice to

say that all the work of settlement of any nature is not

only contemplated under the DV Act, but does not go

against the spirit of the Act or be counter productive to

women.

11. Lawyers' Collective has enumerated other related

services rendered by Counselors being emotional support and


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risk assessment and management which are complimentary to

the negotiations for settlement. It is stated to be due to the

wholesome services rendered by the service providers that

several women have come forward to report domestic

violence. Her prerogative in doing so cannot be snatched

away by the Government. This would restrict the violated

woman's avenues of using mechanisms provided by the law

for redressal of her grievance.

Lawyers' Collective in its report has, therefore, rightly

stated that counselling, as the first “port of call” is a remedy

in itself and is a forum where women are offered a neutral,

nonjudgmental, safe place to decide their course of action.

Hence, it is contended that in several cases, upon the consent

of the woman both parties are called for negotiating a non

violent outcome.

12. All the interveners including TISS have set out their

experiences of several women preferring joint counselling to

settle their disputes to the tardy judicial process. They have

also experienced irreversible adverse consequences to the

family and intimate relationships of women who have chosen,

even upon perceived constraint, the course of litigation

without a chance at settlement.

13. The remedy of counselling and joint counselling is

required to be followed upon using judicious discretion. It is


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trite that several women take recourse to the Magistrate's

Court under the D.V. Act for various orders including

monetary reliefs (Section 20), compensation orders (Section

22) aside from the usual relief of the right to reside in a

shared house (Section 17) or other residence orders and

injunctions (Section19) and also orders relating to custody of

children (section 21). Not all of these reliefs are necessarily

urgent in nature. Not all of them are also nonnegotiable. It

would be for the Counselor and the NGOs who may be the

service providers to provide the right service to the woman in

guiding her to make the right application. Experience has

shown that applications are made by several women only for

maintenance orders. Those applications are eminently suited

for settlement by joint counselling. Even certain residence

orders, which may be required alongside the maintenance

orders may be worked out by creating options for the parties

to negotiate their disputes and consequently the settlement of

their disputes.

14. The case of the State that the functions of service

providers are limited to the services enumerated in Section 10

of the D V Act and that there is no provision in the DV Act for

prelitigation counselling and hence it must be barred is to

read a socially beneficent legislation without regard to the

objective it seeks to serve and the strides it seeks to make for

domestic peace and harmony in the Country. Indeed a


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settlement arrived at would not be legally binding if any party

to the settlement seeks to ignore or breach it. But the

consequence of a breach of any “legally binding settlement”

would be no better.

The other interveners including TISS have shown a

remarkable procedure adopted by them to meet ends of

justice; They make the spouses sign an “Assurance Paper” to

combat to the extent possible, the breach of settlement. If,

however, the undesired result happens, recourse to Court as

the last bastion of justice would be availed if the sagacious

procedure advocated by the Lawyer's Collective is followed; a

DIR is filed already, to be availed by the aggrieved woman.

15. The malaise of domestic violence is universal. It

pervades wherever humans exist in varying forms and

degrees and across class, caste or country lines. Various

initiatives in combating violence have been undertaken

globally. “A landscape Analysis of Domestic Violence Laws”

published in December, 2013 demonstrates cases of victims

and the support services provided in several countries being

shelter, medical assistance, legal help, mediation services to

facilitate reconciliation of parties, telephone hotlines giving

free support advice and “gender desks”. The legislation of

some countries expressly provide for “mediation with both

parties to stop violence”. There are intervention centers set

up in various countries that work at various levels. The


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article on “Domestic Violence Legislation and

Implementation – An analysis for Asean Countries based

on International Standards and Good Practices –

published by UN WOMEN. The article on “Domestic Violence

and its implementation” considers the CEDAW perspective in

Asian Countries which bear references to prelitigation /

mediation and counselling.

The General Recommendation No. 99 of the CEDAW

Committee inter alia requires “protection measures, including

refuge, counselling rehabilitation action and support services for

women who are at risk of violence”.

This denotes, inter alia, counselling before even

violence is perpetrated (pg. 24).

The purpose of DV Legislation as per the UN Framework

for Modern Legislation inter alia provides to :

“(g) to establish departments, programmes, services,

protocols and duties, including but not limited to shelters,

counselling programmes and job training programmes to

aid victims of DV” and

(h) ….

“(i) to enumerate and provide by law comprehensive

support services, including, but not limited to :

(i) …..

(ii) …..


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(iii) Education, Counselling and therapeutic

programmes for the abuser and the victim. (pg. 24, 28 &

31)

(iv) ….

These are a pointer to the extensive work being done in

counselling both the spouses prelitigation and even prerisk

factors.

In fact, the DV Law is largely referred to separately and

distinctly from other laws thus:

“What distinguishes DV Laws from other laws is that

these laws contain provisions of multiple social services such as

counselling, shelter and medical help”.

This demonstrates that the “social services” are the

forerunner to the legal and judicial services accessed by

women and provided by the State.

We have not been able to trace any reference to a bar

created by law to counselling at any stage. We may state that

the best possible time for such counselling as also joint

counselling is before the act of violence escalates.

16. Of course, physical violence to a woman is a complete

anathema to settlement. No woman can be counselled to

settle or reside with a violent husband. The danger which is

contemplated by the Government in making out a case that


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counselling would result in an increased risk of domestic

violence, which may recur would be justified only in cases of

physical violence. We trust that sensitized counselors and

service providers dedicated to the cause of protection and

empowerment of women or even the police would not guide

or counsel her to accept or to live in conditions of physical

violence. We are aware of cases that have resulted in the

woman ending up in flames upon her parents and family

members guiding her or prevailing upon her to continue her

marriage in the home of a violent husband. We would

certainly not countenance or lend any support to any practice

by any State authority or individual who would put in

jeopardy the person of the woman by guiding or counselling

her to continue her marriage or her residence with her spouse

under such circumstances. Such a woman would need and

deserve a protection order protecting her residence either in

her shared residence or her matrimonial home or outside it

where the violence would not recur. In such cases a Domestic

Incident Report (DIR) of the incident of physical violence

under Section 10(2) of the D.V. Act must necessarily be filed

by the Counselor or any other service provider including the

police through the Mahila Desk before commencing

counselling or soon thereafter and make an application under

Section 12 of the DV Act before the Magistrate for obtaining a

suitable relief / order. Hence in such cases indeed the only

wise Counsel would be to take the violated woman out of the


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venue of violence and obtain for her the required protective

order from the Magistrate. In those cases, only after a

modicum protection order is passed can any further

conciliation be countenanced.

17. In fact, it is recommended by the Lawyers' Collective

that it would be a sound practice that a DIR may be filed

under Section 10(2)(a) of the DV Act after the woman

consents before commencing counselling so as to constitute a

record of domestic violence to be followed up by an

application under Section 12, if required for seeking the

reliefs under the Act. This could be complemented by the

practice of executing “Assurance Paper” by the negotiating

partners, which in several cases would be honoured.

The procedure may be informed to the husband along

with the fact that upon any breach of the settlement entered

into, the DIR would show prima facie the occurance and

record of domestic violence.

18. In a case where a woman only needs or requires a

maintenance order upon she having left her shared residence

or matrimonial home consequent upon any domestic violence

caused to her, which may be mental, psychological or,

economical, prelitigation counselling would be the answer.

19. The Counselor must then know how far to go. We trust


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that after reasonable counselling of the woman and

conducting any joint counselling with the spouse if a

reasonable agreement is reached, the Counselors will have

served the purpose of their profession and the violated

woman may have acquired peace through settlement. In such

cases the mandatory channel of filing an application with or

without the DIR and then proceeding for the inevitable

settlement may be an exercise in futility and consequent

waste of time and resources in obtaining through Court

would have been obtained only through the Counselor earlier.

20. Consequently specific ethical guidelines and principals

which are stated to have been evolved which guide the work

of NGOs and women's Rights Organizations as contended by

the Lawyer's Collective must allow the NGOs and service

providers to work in the ultimate result within a free and

unfettered framework to negotiate nonviolence.

21. We are gratified to note that all organizations who have

sought to appear have favoured self regulatory, ethical

guidelines rooted in principals consistent with family laws as

also the D.V. Law. It may be mentioned that even recourse to

section 14 of the D.V. Act and Rule 14 under the D.V. Act may

be made only with the consent of the violated woman and in

accordance with specific, express guidelines invited from the

Bench.


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The issues in this writ petition must necessarily be non

contesting. The ultimate aim is to provide a fair, just,

meaningful and substantial one time settlement through

negotiations for a woman.

22. We, therefore, feel compelled to set aside the impugned

circular issued by the State of Maharashtra dated 24th July,

2014 as being discriminatory, arbitrary and unreasonable but

not without laying down guidelines for the frame work of the

prelitigation counselling conducted by any of the registered

service providers including NGOs, Counselors, police etc.

23. Hence the following order:

1. The circular issued by the State of Maharashtra

dated 24th July, 2014 is seen to be discriminatory,

arbitrary and unreasonable and is accordingly quashed

and set aside so far as it concerns directions with regard

to counselling of women who have approached any

service provider including any NGO or the police or

with regard to joint counselling or mediation with her

spouse / husband or her family members / inlaws.

2. It is declared that any woman who has suffered

any form of domestic violence as defined in the DV Act

and who has accessed the services of any service


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provider provided thereunder including NGOs,

Counselors or the police may be counselled with regard

to the course of action which she can take including

joint counselling /mediation with her spouse / husband

or her family members / inlaws subject to the

following directions / guidelines:

(a) A violated woman must be informed about her

right to choice of the future course of action. She shall

have the last choice. She must be guided with regard to

her legal rights under the DV Act.

(b) There shall be no pressure or force upon her to

settle her claim or grievance. The joint counselling /

mediation shall be commenced only upon the voluntary,

informed consent of the aggrieved woman.

(c ) The service providers including the police, NGOs

and Counsellers shall prominently display in their office

the fact that the aggrieved woman who has accessed

their service shall have the choice of the future course

of action and that any joint counselling or mediation

with her spouse / husband or her family members / in

laws shall only be done with her consent.


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(d) No joint counselling / mediation shall be

undertaken in a case of serious physical domestic

violence suffered by any woman. In such cases the

service provider including the police, counseller or

NGOs shall forthwith file a Domestic Incident Report

(DIR) under Section 10(2)(a) of the DV Act and make

an application under Section 12 of the Act to the

relevant Magistrate seeking any of the reliefs provided

under the DV Act.

(e) In all other cases of DV the NGOs, Counsellors or

the police, preferably through the Mahila Desk may

undertake counselling of the woman and even joint

counselling / mediation of the woman with her

spouse / husband, family members / inlaws to settle

the dispute amicably either by reconciliation or

amicable separation.

(f) Upon the parties entering into any settlement an

“Assurance Paper” or “Terms of Settlement” may be

entered into and executed by the parties.

(g) Upon the aggrieved woman accessing any service

provider including the police, counsellors, NGOs, the

service provider may, if considered appropriate, file a


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Domestic Incident Report (DIR) under Section 10(2)(a)

of the DV Act in the relevant Magistrate's Court.

The fact of the filing of such report and its impact

may be informed to the husband along with the fact

that upon breach of the settlement entered into, the

report would show prima facie the occurance and

record of domestic violence.

24. We trust we have taken care of the recommendations

made by the petitioner and addressed the specific issues

raised by the petitioner in her letters dated 10th March, 2015.

25. The petition is disposed of accordingly.

(ROSHAN DALVI, J.) (CHIEF JUSTICE)


Documents

Counseling - Mediation in Domestic Violence Cases Can Be Initiated Without Court Order - Bombay HC Lays Down Guidelines