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Mediation in Domestic Violence Case: Whether to Use or Not to Use? – An Indian Perspective

by Sandeep Bhalothia
September 2017 Sandeep Bhalothia

The author aims is to identify two opposite interests associated with the settlement of domestic violence cases, and look at the Indian law to see how those two interests are equitably balanced, therefore, providing a recommended way forward, not necessarily a perfect one, to handle cases related to domestic violence. Briefly, these two interests are – protecting family relationship and children from trauma and to make sure that the abuser is made to pay for his deeds – and the following paragraphs present an expose of the same. 

A.    Identifying First Interest

1.     The use of mediation in domestic violence related cases invites conflicting opinions. A set of people believe that it is okay to use mediation in domestic violence cases just like in any other kind of dispute but another set of people believe that there is no place for mediation in domestic violence cases. Use of mediation in any dispute has its own advantages like confidentiality, informal procedures, flexibility, and its ability to save and sustain relationships. Therefore, one can say that mediation should be used to settle cases involving domestic violence. After all, it may potentially save the family relationships, protect the children from the emotional repercussions that they might suffer due to long drawn court litigation, etc. Mediation’s voluntary nature preserve the right of self-determination and, therefore, parties have full autonomy to accept or reject the outcome. So, this is one way of dealing with domestic violence cases to satisfy a family interest, let us call it – the first interest. The first interest is to protect the family relationship and children from the repercussions of a family dispute

B.    Identifying Second Interest

2.     It would not be an incorrect assumption to say that there are a set of people who believe that cases related to domestic violence should never be dealt with mediation. It is so because domestic violence involves a criminal act and, therefore, the accused should not be let free without making him repay for his criminal act. Also, giving criminal punishment (imprisonment or a heavy fine) acts as deterrence against other citizens and, therefore, possibly reduces the rate of domestic violence cases in the community. So, the other interest associated with domestic violence cases (the interest of making it an offence) is where the abuser is made to pay for his deeds and the standards of acceptable and unacceptable behaviour are set. For the sake of our discussions, let us call this the second interest.

C.    Examining First Interest

3.     In India, ADR (Alternative Dispute Resolution) mechanisms are governed by the Arbitration and Conciliation Act of 1996 (subsequently referred to as the ‘Act’). This Act allows the arbitral tribunal to settle a dispute by use of mediation, conciliation or other procedures.[2] In addition to this Act, Section 89 of the Civil Procedure Code (subsequently referred to as ‘CPC’) also provides for ADR mechanisms to resolve disputes between the parties. Back in 1842, the then British Prime Minister William E. Gladstone had rightly stated that justice delayed is justice denied. The huge number of pending cases in the Supreme Court[3], High Courts, and lower courts[4] in India, in addition to the less number of judges in the lower judiciary[5] has led to delay in delivering justice to the needy. The objective behind introducing Section 89 in the CPC by way of an amendment in 1999 was to clear the backlog of cases and provide a faster option to the litigants to resolve their disputes. Under Section 89 of the CPC, if it appears to the court that there is a possibility of the settlement between the parties and it can also be accepted by the parties, then the court shall refer parties to mediation.[6]

4.     The Indian courts have shown no hesitation in utilizing the tool of mediation to resolve family disputes. Recently, Karnataka High Court[7] passed an order allowing for quashing of criminal proceedings against the accused husband. A dispute arose between the husband and wife after the birth of a girl child, and then there was filing of a divorce petition. The wife also filed a criminal case against the husband under Section 498A of IPC, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The Court referred the divorce matter to mediation under Section 89 of the CPC and both parties mutually agreed to a settlement. After this, the wife filed for the quashing of the criminal proceedings which the Court allowed stating that since the parties have settled their dispute amicably through mediation, there is no point in proceeding further with the criminal complaint. In 2014, Karnataka High Court[8] allowed for compounding of offence on the request of the victim after considering the fact that the victim and the accused had amicably settled their divorce dispute through mediation. Both the above orders have relied on a precedent by the Supreme Court[9] where it was held that “even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, that for the purpose of securing ends of justice, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings in respect of such offences can be quashed in exercise of power under Section 482 Cr.P.C”. The approach of the Court in above cases clearly shows its intention to let the matter settle amicably between the parties thereby satisfying the first interest as identified above, i.e., to protect the family relationship and children from the repercussions of a family dispute.

D.    Examining Second Interest

5.     Examining the second interest, it could be argued that in the above court cases, the judiciary has acted in such a manner that it has led to the dilution of the fear of being convicted in domestic violence related cases. The courts have overlooked the fact that it is allowing the accused to go freely without making him suffer for his criminal act. While allowing the quashing of the criminal proceeding after the matter has been settled between the parties under the Section 89 of the CPC, the Court ignored the history of Section 498A of IPC. In the 1980s, there was a drastic increase in dowry-related deaths and this generated pressure on the government from various organizations to provide for tangible protection to married women.[10] In response to public pressure the government swiftly came up with the amendment to introduce Section 498A in IPC, and till today this is the only section in the IPC which protects women from domestic violence by recognizing it as a crime. Domestic Violence under Section 498A of IPC is a cognizable, non-bailable[11] and non-compoundable[12] making it an offence of a serious nature. This evil practice took birth in our society because of its patriarchal nature where women are regarded as inferior to men and are subjected to abuse and this is even justified openly in the present time. Recently, Brand Finance has ranked India as “7th most valued nation brand” out of 100 countries![13] But, our society has not been able to keep pace with the enormous economic development. The patriarchal notion is very deep rooted in our society and the proof of the same can be ascertained from the increasing number of domestic violence cases filed throughout the country. In 2014, the State Commissionerate of Women and Child Development of Maharashtra reported that the domestic violence related cases have increased in major districts like Pune and Mumbai. In Pune, it has increased to seven folds from merely 31 in 2009 to 220 in 2013. And in Mumbai, it has increased from 49 in 2009 to 208 in 2013.[14] In Gujarat, the domestic violence cases increased by 1154 to 7812 in 2013 but the conviction rate is merely 2.30%![15] Also, there has been a nationwide increase in domestic violence cases by 11.6% from 2012 to 2013 but the conviction rate has increased by only 1%.[16] In 2014, BBC released a report analysing the crime data which showed that there has been an increase in domestic violence cases by 134% in the last 10 years.[17]

6.     Therefore, an argument could be made that on one hand there is an increase in cases related to domestic violence and the decrease in the conviction rate, but on the other hand, our courts are taking a lenient approach towards a crime that should have been eliminated long ago. Unintentionally, court’s approach is leading to two problems - firstly, it is promoting the legal recognition of domestic violence but not taking strict actions against abusers – and sending a negative message in the society. The courts should never allow a crime to be forgiven just because the criminal cuddles the victim because doing so sends a negative message to the society that the domestic violence against women can be accepted if the parties settle their dispute amicably. Just because a victim wants to forgive the accused, it should not be the ground to quash a criminal proceeding because the crime not only affects the victim but also affects the society at large. The Supreme Court of India should take a relook at its decision because domestic violence in not a crime of private nature rather it is a violent act committed by one citizen against the other citizen and should not go unpunished. Secondly, the court has also failed to appreciate the fact that a woman can be forced and intimidated to agree for settlement under Section 89 of the CPC and, subsequently, for quashing of the criminal proceeding or FIR filed under Section 498A of IPC. The second problem is very likely to arise considering the fact that as per the Census of 2011 more than 83 crore people (out of the then total population of 121 crores) lived in rural areas.[18] And out of these 83 crore people more than 40 crores were females with limited or no access to education and independent source of livelihood.

7.     In the light of increasing violence against women, the United Nations (UN) adopted the Declaration on the Elimination of Violence against Women in 1993[19] and 25th November was also declared as the International Day for the Elimination of Violence against Women.[20]

8.     So far, we have identified and understood two interests associated with cases related to domestic violence in India and now it is the time to look into the Indian law to understand Indian legal scenario to see how both interests may be equitably balanced. I got interested in mediation around two years ago after participating in a mediation competition which was held in V.M. Salgaocar Law College (Goa, India). I realized that the mediation is the best way to resolve almost any kind of dispute. I’m a believer of mediation. I have always kept myself mediation abreast by constantly reading scholarly works, participating in consensual dispute resolution competitions, writing and commenting about the recent developments, and having conversations and discussions about it. But one place where I have never appreciated the presence of mediation was in cases involving domestic violence. I always felt that mediation can be of no good in such cases because such cases should never even be attempted to be settled. But after reading more and trying to understand the working of mediation in such cases I seem to have changed my stand. My first observation was that the approach and process of mediation cannot be same for all kinds of disputes, it needs to be tailored after looking at the nature of the case, culture, parties involved, and interests that we are seeking to bring together.

9.     When it comes to serious cases like family cruelty, domestic violence etc., I believe that mediation should be more regulated to ensure safety and a favorable outcome for the victim. Indian law and judges in various cases have tried to adopt Aristotle’s doctrine of golden means by taking a middle approach between two extremes. The first extreme is protecting the institution of family and the future of children and, second, setting up standards of unacceptable behavior.

E.    Measures present in Law

10.  In general, only disputes with civil nature can be mediated. In the majority of the jurisdictions, criminal disputes, especially those which are non-compoundable, cannot be mediated but in few judgments, Indian courts have taken a view that pre-litigation mediation should be motivated for matrimonial disputes if those disputes are fit for mediation.[21] The first hurdle in mediating a case under Section 498A of IPC is that it is non-compoundable and this problem was recognized by the Supreme Court in Ramgopal and Anr. v State of M.P. and Anr.[22] The court observed that there are several offences under IPC which are non-compoundable including Section 498A of IPC and it requested Law Commission of India and Union Government to make these offences compoundable as this will reduce the burden on the courts and encourage reconciliation between the parties. In B.S. Joshi Case[23], the Supreme Court of India held that the High Court, while exercising it inherent power under Section 482 of Cr.P.C, can quash a criminal proceeding in a non-compoundable offence if the parties have amicably settled their differences.  In that case, the Supreme Court was hearing an appeal in a matter related to domestic violence and harassment and cruelty to woman for dowry where wife registered an FIR against the husband. Later she filed an affidavit which stated that the FIR was registered at her instance due to temperamental differences and implied imputations. According to that affidavit, her disputes with the husband have been finally settled and they have agreed for mutual divorce. The High Court dismissed the petition filed by the wife stating that the offences under Sections 498A and 406 IPC are non-compoundable and the inherent powers under Section 482 of the Code cannot be invoked to bypass the mandatory provision of Section 320 of the Code. The Supreme Court while hearing the appeal felt that it is the duty of the Court to encourage genuine settlements of matrimonial disputes. The Court was aware of the fact that the Section 498A of the IPC was introduced to prevent the torture of woman by her husband or by relatives of her husband but the Court stated that the hyper-technical view would be counterproductive and would act against the interest of women and against the object for which it was added.

11.  In Srinivas Rao Case,[24] the Supreme Court of India was hearing an appeal filed by the husband against the order of Andhra Pradesh High Court which set aside the divorce petition granted in his favour. The Supreme Court in observed that if the parties were sent to a mediation centre then the bitterness between them would not have escalated.[25] The Judge also stated that mediation as a method of alternative dispute resolution has got legal recognition and they have referred several matrimonial disputes to mediation centres and nearly 10 to 15 % of those disputes gets settled through various mediation centres. The Court observed that offences under Section 498A can be settled through mediation if there exits elements of settlement but judges need to be careful that erring spouse should not be able to get out of clutches of law by manipulating the mediation. In order to make sure that mediation is conducted fairly in matrimonial disputes, the Court passed few directions like taking consent of parties before referring them to mediation, setting reasonable time limit for court-referred mediation so that the resolution of dispute is not delayed, complaints under Section 498A of IPC should be referred to mediation only when there exits element of settlement etc. So, in this case court took a pro-mediation approach but provided few guidelines in order to make sure that the mediation process is not misused by the erring spouse.

12.  In Afcons Infrastructure Case[26] the Supreme Court clarified that even when a case is referred to a neutral third party (mediator) the court retails its control and jurisdiction over the matter and the mediation settlement will have to be placed before the court for recording the settlement and disposal. Also, before referring the matter for mediation, the court is required to briefly record the reason why the case need to be referred to mediation. At para. 31 of the judgement the Supreme Court provided more detailed procedure to be adopted by a court under Section 89 of CPC thereby placing sufficient measure in place so that the process of mediation is not misused against the weaker party.

13.  In Manas Acharya vs State & Anr Case,[27] the Delhi High Court while hearing a petition for quashing of an FIR filed under Section 498A of IPC held that the settlement agreement executed before the Mediation Centre between the parties is a comprehensive legal, valid and binding document. Recently, the Bombay High Court in Dr. Jaya Sagade v The State of Maharashtra[28] while hearing a petition against the circular passed by the Government of Maharashtra that there is no harm in mediating domestic violence related cases without court order. The circular provided that mediation for cases under DV Act can only be carried after the case is filed and direction are given by the court for mediation. The court placed considerable emphasis on the fact that no women should be counselled to settle or reside with a violent husband. The court noted that if there is risk of recurrence of domestic violence then a Domestic Incident Report (DIR) of the incident of physical violence under Section 10(2) of the DV Act must necessarily be filed by the Counsellor before commencing counselling. But in cases where women needs only maintenance order upon she having left her shared residence consequent upon domestic violence caused to her, a pre-litigation counselling would be an answer. The court also stated that recourse to Section 14 of the DV Act and Rule 14 under the DV Act can only be made after obtaining the consent of the violated woman and in accordance with specific, express guidelines invited from the Bench. In its order the court set aside the impugned circular but in order to provide protection to violated women it stated that the mediation should commence only upon voluntary and informed consent of the aggrieved woman and there shall be no pressure on her to settle her claim. The court also took precautionary measure by stating that no mediation shall be undertaken in case of serious physical domestic violence suffered by any woman.

14.  All these above judgements have one thing in common i.e., all of them have taken a pro-mediation approach in domestic violence case but they have also established some measure to make the mediation process more fruitful and fair. Whether you are favour mediation or not but one thing that should be kept in mind is that, the mediation is a virtue, if it is completely ignored in matrimonial disputes then family as a social institute might lose its value, but if used without proper regulations and supervision then it would suppress the weaker party and deliver unfair results.

ENDNOTES


[1] Sandeep Bhalothia is a Final Year Student at Jindal Global Law School (Sonipat, Haryana).

[2] Section 30(1) of the Arbitration and Conciliation Act, 1996, India

[3] As on 1/3/ 2015, 61300 matters were pending before the Supreme Court of India, available at- http://supremecourtofindia.nic.in/p_stat/pm01032015.pdf, last seen on 2/11/2015.

[4] Over 3 crore court cases pending across country, The Economic Times, available at - http://articles.economictimes.indiatimes.com/2014-12-07/news/56802830_1_120-cases-high-courts-expeditious-disposal, last seen on 31/10/2016.

[5] Available at - http://www.newindianexpress.com/thesundaystandard/Vacancy-Nightmare-Courts-Delay-in-Justice/2015/10/04/article3061196.ece, last accessed on 31/10/2016.

[6] Section 89(d), The Code of Civil Procedure, 1908.

[7] Mohammed Mushtaq Ahmad and Ors. Vs. State by Kengeri Police Station and Ors. 2015(3) AKR 363.

[8] Gurudath K. Vs. Respondent: State of Karnataka MANU/KA/2695/2014.

[9] (2013) 4 SCC 5

[10] Statement of Objects and Reasons, The Criminal Law (Second Amendment) Act, 1983, 26th December 1983

[11] First Schedule, The Code of Criminal Procedure, 1973.

[12] Section 320, The Code of Criminal Procedure, 1973.

[13] Nation Brands 2015, Brand Finance, (2015), p.no. 7, available at - http://brandfinance.com/images/upload/brand_finance_nation_brands_2015.pdf, last seen on 2/11/2016.

[14] Neha Madaan, Rise in domestic violence cases, Times of India, available at - http://timesofindia.indiatimes.com/city/pune/Rise-in-domestic-violence-cases/articleshow/30636710.cms, last seen on 2/11/2016.

[15] Domestic violence cases rise, conviction rate goes downhill in Gujarat, DNA, available at - http://www.dnaindia.com/india/report-domestic-violence-cases-rise-conviction-rate-goes-downhill-in-gujarat-2000205, last seen on 3/11/2016

[16] Ibid.

[17] Geeta Pandey, 100 Women 2014: Violence at home is India's 'failing', BBC News India, available at - http://www.bbc.com/news/world-asia-india-29708612, last seen on 3/11/2016.

[18] Census of India 2011, available at - http://censusindia.gov.in/2011census/censusinfodashboard/, last seen on 3/11/2016.

[19] Resolution on Declaration on the Elimination of Violence against Women, United Nations, available at - http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/48/104, last seen on 1/11/2016.

[20] United Nations General Assembly, Resolution on International Day for the Elimination of Violence against Women, United Nations, available at - http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/54/134, last seen on 1/11/2016.

[21] K. Srinivas Rao v D.A. Deepa, Civil Appeal No. 1794 of 2013, Supreme Court of India

[22] Ramgopal and Anr. v State of M.P. and Anr (2010 ) 13 SCC 540

[23] B.S. Joshi & Ors. v State of Haryana & Anr. AIR (2003) SC 1386

[24] K. Srinivas Rao v D.A. Deepa, Civil Appeal No. 1794 of 2013, Supreme Court of India

[25] Ibid. Para 31.

[26] Afcons Infrastructure Ltd. vs. Varkey Construction Co. Pvt. Ltd. 2010 (8) SCC 24.

[27] Manas Acharya vs State & Anr CRL.M.C. 2090/2012 & CRL.M.A. 7236/2012, 14412/2012

[28] Dr. Jaya Sagade v The State of Maharashtra SOM.PIL.104/2015-DB 

Biography


Sandeep Bhalothia is a Penultimate Year Law Student at Jindal Global Law School. He is a Young Arbitration Member at ICCA (The Hague, Netherlands), and a Fellow at World Mediation Organization (Berlin, Germany).



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