Bombay High Court
Dr. Jaya Sagade vs State Of Maharashtra on 4 September, 2015
1 SOM.PIL.104/2015-DB
mnm
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
7 SOM.PIL.104/2015-DB
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
8 SOM.PIL.104/2015-DB
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.
12 SOM.PIL.104/2015-DB
(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
13 SOM.PIL.104/2015-DB
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
14 SOM.PIL.104/2015-DB
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
21 SOM.PIL.104/2015-DB
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
22 SOM.PIL.104/2015-DB
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) .....
27 SOM.PIL.104/2015-DB
(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.
31 SOM.PIL.104/2015-DB
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.
33 SOM.PIL.104/2015-DB
(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
34 SOM.PIL.104/2015-DB
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)
