A controversy has arisen over a government regulation (GR) issued by the department of women and child development (WCD), government of Maharashtra, that in cases of domestic violence, counselling or mediation between the parties can be conducted only through an order of a magistrate and any stakeholder engaging in this practice without a court order would amount to a violation.
The controversial GR flows from the provisions of the Protection of Women from Domestic Violence Act (DV Act), 2005 which provides for appointment of protection officers to help aggrieved women to approach the court through a simple application in a prescribed format. If the woman desires, on the very first court date itself, the protection officer may request the magistrate to direct the parties for counselling, after passing preliminary (ad-interim) orders to protect the woman. At this stage, a lawyer is not required. The act provides for registration of experts as counsellors and stipulates clear guidelines and a timeframe for conducting the same. If counselling succeeds, the magistrate will pass an order, to render the consent terms binding. If it fails, the case will continue, without further delay.
Some activists have opposed the GR on the ground that most women facing domestic violence do not wish to approach courts as they are scared and prefer out of court settlements. They also feel that the GR undermines women’s agency and will throttle efforts of providing “feminist” counselling to those who do not wish to go to court.
Since the GR applies only to designated stakeholders under the act, before going into the merits of these contentions, it is important to map the current scenario of state-funded counselling centres in Maharashtra:
a) Police personnel designated as counsellors by the social service branch
b) Family counselling centres run by NGOs
c) Zila parishad counselling centres in rural areas
d) Special cells for women and children run by NGOs/social workers in police stations and
e) Counselling centres in hospitals.
A recent survey of 60 counselling centres in six districts of Maharashtra brought out the wide disparity among them. The qualifications ranged from 10th grade to a post-graduate social work degree. The monthly remuneration varied from Rs 3,000-Rs 15,000. Although around 20,000 aggrieved women approached them with complaints of domestic violence annually, only five per cent of these landed in court, despite a consensus that the DV Act is beneficial to women.
The common practice observed when an aggrieved woman approaches a counselling centre for help is to call the opposite party and “settle” the dispute. While some counsellors claimed a success rate of 80 per cent, there was no way of verifying the same. However, there have been instances where cousellors have forced women to return to their husband, or in the alternative, take out their mangalsutra and leave the matrimonial home.
In one case, under pressure, the woman returned only to be brutally assaulted by her husband. When she returned with severe injuries, the counsellor refused to take any responsibility. At times, consent terms recorded are incriminatory, where the woman is made to take the blame for the violence. We have come across cases where despite fractures, deep gashes with knives or blades, skull injuries or loss of sight, women wish to return to their matrimonial home on their husband’s terms due to sheer poverty, lack of support or stigma of being single.
During informal discussions, counsellors agree that they are “helpless” when the consent terms are violated. The woman is then advised to seek relief in court, through a lawyer. Meanwhile, precious time is lost and the victim loses faith in the system.
Even after eight years of the enactment coming into force, it is rather alarming to note that despite the wide prevalence of domestic violence in society, the number of cases filed under the DV Act are miniscule. Only those who can afford the services of private lawyers are able to reach the court and these become highly contested cases. This has led our superior courts to gain a skewed perception regarding the prevalence of domestic violence in India.
Some recent judgements have examined the validity of interventions by non-judicial fora. In a recent judgement, the Supreme Court has ruled that fatwas or decisions of darul qazas (sharia courts) have no legal validity and no one is bound to obey them. In another important ruling in a case of sexual harassment at workplace, the Bombay High Court has ruled that even a statutory body such as the National Commission for Women does not have the power of a civil court and its directions are not binding but merely recommendatory.
As against this, the DV Act has created an innovative opening and laid out a simple procedure to make consent terms binding, if settlements are done under the scrutiny of the court. This Act was passed after almost three decades of struggle by the women’s movement. We can’t campaign for a law at one end and simultaneously work towards undermining its provisions by keeping women from its purview and render them vulnerable through “pre-litigation counselling” which is devoid of legal sanction, whether from a “feminist” or “save the family” perspective.
Service providers and women’s organisations have a significant role to play in building the woman’s capacity, creating awareness about her legal options, providing her the necessary referrals, and hand-holding her during the litigation process.
Faced with the constant criticism that the government has not been serious about implementing the DV Act, there have been some significant developments. Recently 215 permanent protection officers have been appointed, in addition to the already designated 670. A handbook of protocols, best practice and reporting formats under the act is brought out with the approval of all concerned departments.
The Bombay High Court set up a special committee to approve the guidelines for the judiciary. In order to ensure convergence among stake-holders, a three-tier bottom up structure has been constituted at the taluka, district and state level. The aim is to evolve an effective model that can be monitored.
In this context, rather than keeping women away from the protective mantle of the court on the ground that “women fear the courts”, it would be prudent to make our courts accountable for women’s safety and security, and demand that they function in an efficient and gender sensitive manner. This is our right as citizens.
It is time our judiciary began to grapple with the enormous problems facing a large number of women who are trapped within life-threatening situations of domestic violence and provide expeditious remedies. What is at stake here is the right to life under Article 21 of our Constitution. If cases of rape, even those that occur within families cannot be settled by counsellors and police, how can the law permit cases of domestic violence to be “settled” outside the purview of the act?
The writer is a women’s rights lawyer and consultant to the department of women and child development, Maharashtra