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Bombay HC – Woman facing physical domestic violence cannot be sent back to her husband’s home

loveThe Bombay high court has held that a woman facing physical domestic violence cannot be sent back to her husband’s home through ‘joint counselling’ without a protection order from the court


A decade after enacting the Protection of Women from Domestic Violence Act (or the Domestic Violence Act) on September 13, 2005, which was meant to revolutionalise family relationships in India, the Bombay high court has set out guidelines for conducting pre-litigation counselling and held that a woman facing physical domestic violence cannot be sent back to her husband’s home through “joint counselling”, without a protection order from the court.

The judgment, pronounced by a two-judge bench of Chief Justice Mohit Shah and Justice Roshan Dalvi, on September 4, 2015, issued the first clear and unequivocal statement regarding this in a suo moto public interest litigation: “Physical violence to a woman is a complete anathema to settlement… Women would need and deserve a protection order protecting her residence either in her shared residence or her matrimonial home or outside it, where violence would not occur… In such cases, a DIR (domestic incident report) of the incident of physical violence under Section 10(2) of the DV Act must necessarily be filed by the counsellor or any other service provider, including the police before commencing counselling and make an application before the magistrate under Section 12 of the DV Act.

In those cases, only after a modicum protection order is passed can any further conciliation be countenanced… Any out of court settlement arrived at between parties shall be in accordance with law when power balancing is done by the counsellor or the mediator between two parties having unequal bargaining strengths and not an enforced settlement derogatory to a woman’s human and legal rights… A 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 court.”

The order reiterates: “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, counsellor or NGOs shall forthwith file a 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.”

Though the judgment does not specify it, but if a woman is facing serious domestic violence, it will also amount to a cognisable offence. Hence, the police do not have a choice of not registering a criminal case under the appropriate section (either Section 498A of IPC, cruelty to wives, or under Sections 323-326, assault).

So the judgment, while upholding the right of service providers to offer pre-litigation “joint counselling”, has clarified that it must be confined it to cases where the woman is not facing serious physical violence. It further stipulates that any joint counselling can only be done with her free and informed consent: “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 meet specialised feminist approach: it may be protectionist or empowering. It certainly cannot be surrendering or yielding.”

In order to obtain informed consent, the aggrieved woman would have to be explained the remedies available to her under the Domestic Violence Act and the procedure of accessing these remedies. It would also mean that the service provider would have to provide her the details of the protection officer who is mandated to guide her to access the court as well as her entitlement of legal aid. She also needs to be explained the provision of urgent, interim and ad-interim orders to protect her rights prior to “joint counselling”. Only then would the aggrieved woman be able to make an “informed” choice.

Earlier many women would be frightened off by being told that the courts do not function, the law doesn’t work or that the lawyers are exploitative, and that she would be better off if she agreed to an “out of court settlement” negotiated by the concerned service provider, be they police, NGOs or counsellors, many didn’t enter a court to seek an order of protection.

But now, the order has stipulated that all service providers would have to clearly display this information in their offices: “The service providers including the police, NGOs and counsellors 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 husband or family members/in-laws shall only be done with her consent.”

This is a great improvement from the prevailing situation where settlements are being carried out in police stations and counselling centres in an unbridled manner, without due concern to a violated woman’s safety.

The police, who have been claiming all along that they have no role to play under the act, since it is a statute providing civil remedies, have now been clearly informed of their duty to protect women facing domestic violence through both civil injunctions and criminal proceedings.

As a lawyer providing legal services to women facing domestic violence, I personally know of several cases where women sent back without any protection had burnt themselves to death, unable to cope with the trauma of continued violence.

Through the suo motu PIL the high court has brought us a step closer to the avowed intention of the act by ensuring that violated women don’t fall through the net, through complacence, callousness or compromise on the part of those mandated to ensure their safety.

The writer is a women’s rights lawyer and director, Legal Centre of Majlis

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