Bombay HC lays down guidelines [Read the Judgment]

By: Apoorva Mandhani | September 5, 2015
Arbitration and Mediation

A Bombay High Court comprising Chief Justice Mohit Shah and Justice Roshan Dalvi has set aside a State Government circular that prohibited counseling and mediation in domestic violence cases without a court order.  The Court ruled that the circular is “discriminatory, arbitrary and unreasonable”, and set it aside so far it concerned the directions with regard to counseling of women who have approached any service provider for counseling under DV Act. The Court also laid down guidelines for counseling/mediation under the Act.

The impugned circular was issued by the department of women and child development of the Government of Maharashtra, on July 24, 2014. The Circular stipulated that counseling or mediation in a case under the DV Act can only be carried out after Court directions.

The Circular specified that such agencies were only allowed to informed 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 Court was hearing a PIL filed on the basis of a letter written by Dr. Jaya Sagade, a service provider under the Protection of Women from Domestic Violence Act, 2005 (DV Act), as a part of the women’s study center of the ILS Law College, Pune, Maharashtra (Center) where she serves as a Professor of Law. Various other organizations had also intervened, including Majlis Manch, Lawyers Collective, Tata Institute of Social Studies, Stree Mukti Sanghatana and Bhartiya Stree Shakri.

Dr. Sagade had contended that the circular was violative of Article 14 and Article 21 of the Constitution, being discriminatory and absolute in nature.

The NGOs had contended that in case the role of these agencies would merely be reduced to “referral” agencies, in case their role is restricted to direct a woman to services providers. “Their experience and expertise in the field would certainly be whittled down to clerical work which cannot be termed “counseling””, it observed.

They referred to the spirit of the DV Act which is as much of protecting the woman, as of preventing the violence and empowering her to have access to justice.

They submitted that in case the course stipulated by the Circular is put to practice, “the violated woman may have no remedy in the hope that counseling and medication would yield the necessary result ending the violence against her.” This is because, a long period of time usually elapses after initial application is made and after the Magistrate directs counseling and mediation under Section 14 of the Act.

They also brought to the Court’s attention, the Statement of Objects and reasons of the impugned circular, according to which, the circular aimed to arm the woman from being victimized by violation. They hence contended that it is only the counseling of specialized persons with expertise in that field that would empower her to take charge of her life to protect herself and prevent the violation.

The Court disregarded the State’s contention that the function of service providers are limited to the services enumerated in Section 10 of the DV Act, observing that such an interpretation 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.”

It observed that 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 counseling would be the answer.

  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 provider provided thereunder including NGOs, Counselors or the police may be counselled with regard to the course of action which she can take including joint counselling /mediation with her spouse/husband or her family members / in­laws subject to the following directions / guidelines:

(a) A violated woman must be informed about her right to choice of the future course of action. She shall have the last choice. She must be guided with regard to her legal rights under the DV Act.

(b) There shall be no pressure or force upon her to settle her claim or grievance. The joint counselling / mediation shall be commenced only upon the voluntary, informed consent of the aggrieved woman.

(c) The service providers including the police, NGOs and Counsellers shall prominently display in their office the fact that the aggrieved woman who has accessed their service shall have the choice of the future course of action and that any joint counselling or mediation with her spouse / husband or her family members/inlaws shall only be done with her consent.

Read the Judgment here.