Bombay High Court : Domestic violence cases- No harm in moderating without court order

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On Friday state government circular that banned counselling and resolving in domestic violence cases without a court order, the Bombay High Court said the circular was “discriminatory, arbitrary and unreasonable.” It laid down guidelines on how pre-litigation counselling may be conducted by any registered service provider, including NGOs, counsellors and police officers.

Chief Justice Mohit Shah and Justice RS Dalvi, hearing a PIL, gave the directions. A letter written by Jaya Sagade, director of the Women Studies Centre, ILS Law College, Pune on March 14 stated that the July 24, 2014 government circular is “inconsistent” with the Protection of Women from Domestic Violence (DV) Act, which does not prohibit parties from resolving disputes outside court. The court had treated the letter as a Public Interest Litigation.

The court stated that the ultimate aim is to provide a fair, meaningful and substantial one-time settlement for the woman through negotiations.
“The contention that each woman desiring to be advised or counselled must be referred to courts is against public policy itself. Even the contention, though correct, that the settlement by way of consent terms arrived at pre-litigation would not be binding is not reason for it not being given a try,” the court said.
The guidelines issued by the court include informing a woman about her right to choose the future course of action.

“There shall be no pressure on her to settle her claim or grievance. The joint counselling or mediation shall commence upon voluntary, informed consent of the aggrieved woman,” directed the court, stating that no joint counselling or mediation shall be undertaken in a case of serious physical domestic violence.

“In such cases, the service provider including police, counseller or NGO shall file a Domestic Incident Report under the DV Act and make an application to the relevant magistrate seeking any of the relief provided under the DV Act,” added the court.
The circular had said that counselling and mediation is restricted to post-litigation and that counselling of a domestic violence victim without court direction will be a breach of the law. Sagade’s letter had said that in many cases, intervention of NGOs resulted in an amicable settlement.

“The circular diminishes on rights of women who are victims of domestic violence and also NGOs working for promotion and protection of women rights,” it added.
The court observed that a “woman must be entitled to freedom of choice. It is for her to decide the course of action. It is for NGOs that have the expertise to provide her the advice. It is for the State to make available to her legal rights which could be availed upon an informed choice made by her.”