when a dozen feminist NGOs got an order saying MEDIATION is allowed without court order !! :-) :-)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SUO MOTU PUBLIC INTEREST LITIGATION NO. 104 OF 2015

Dr. Jaya Sagade, Director …Petitioner

Vs.

The State of Maharashtra …Respondent

Ms. Jaya Sagade, Petitioner in person present
Ms. Ujwala Kajrekar for Lawyers Collective
Ms. Flavia Agnes for Majlis Legal Centre
Ms. Veena Gowda i/b. Sumangala Biradar for TISS and Stree Mukti Sanghatana
Mr. V.B. Thadani, AGP for State
Ms. Gayatri Singh, Sr. Advocate with Vijay Hiremath for Intervener NGO
Mr. 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 2 SOM.PIL.104/2015-DB 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 24 th 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 under-utilised. 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 3 SOM.PIL.104/2015-DB 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 Suo-moto 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 24 th 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, 4 SOM.PIL.104/2015-DB 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 in-laws 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 5 SOM.PIL.104/2015-DB 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 ad-interim, 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 6 SOM.PIL.104/2015-DB 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 “pr-elitigation 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 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, 3 rd 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 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 9 SOM.PIL.104/2015-DB 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 pre-litigation 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 10 SOM.PIL.104/2015-DB 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 11 SOM.PIL.104/2015-DB 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. (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 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 pre-litigation 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 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 15 SOM.PIL.104/2015-DB 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 16 SOM.PIL.104/2015-DB 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 non-State 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 17 SOM.PIL.104/2015-DB 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 non-registered is not a reasonable classification. The non-registered 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 pre-litigation 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 18 SOM.PIL.104/2015-DB 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 19 SOM.PIL.104/2015-DB 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 pre-litigation, 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 one-sided 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 20 SOM.PIL.104/2015-DB 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 pre-litigation 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 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. Pre-litigation desks and clinics set up in various Courts and socio-legal 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, pre-litigation, litigation or post-litigation. 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 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 23 SOM.PIL.104/2015-DB 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, non-judgmental, 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 24 SOM.PIL.104/2015-DB 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 non-negotiable. 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 pre-litigation 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 25 SOM.PIL.104/2015-DB 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 26 SOM.PIL.104/2015-DB 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 pre-litigation / 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) ….. (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 pre-litigation and even pre-risk 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 28 SOM.PIL.104/2015-DB 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 29 SOM.PIL.104/2015-DB 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, pre-litigation counselling would be the answer.

  19. The Counselor must then know how far to go. We trust 30 SOM.PIL.104/2015-DB 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 non-violence.

  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. 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 24 th July, 2014 as being discriminatory, arbitrary and unreasonable but not without laying down guidelines for the frame work of the pre-litigation 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 / in-laws. 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 32 SOM.PIL.104/2015-DB 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 / in-laws 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. (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 / in-laws 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 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)

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