What is the objective of counseling? At what stages can
counseling be done?
Section 14 of the PWDVA allows the Magistrate to give an order
for counseling, to be undergone either singly or jointly by the
parties, at any stage of the proceedings. At the commencement
of legal action, the aggrieved woman and the perpetrator are in
an unequal situation. Hence no joint counseling maybe possible
in that situation, without the risk of further disempowering the
AP. Counselling can take place at the pre-litigative and litigative
stages of proceedings. At the pre-litigative stage, counseling
would aim at restoring the aggrieved woman’s self esteem, dignity,
provide psychological support to her and facilitate her to decide
whether or not to pursue a legal recourse. At the litigative stage,
counseling would be aimed at getting the perpetrator to give an
undertaking not to inflict further domestic violence. This form
of counseling is important in re-establishing “basic trust and a
sense of safety” for the woman facing domestic violence.
The
overall objective of counseling as envisaged under this law is to
prevent any further acts of violence from being perpetrated. In
cases where joint counseling is ordered, the proceedings take
on the complexion of a mediation process. However, Rule 14
specifies that settlements are to be attempted only at the behest of
the aggrieved person.
Is counseling compulsory under the PWDVA? Would an AP
be forced to return to a violent home through the procedure of
counseling?
As per Rule 14 of the PWDVA, parties can be referred by the
court for counseling to arrive at a court-mediated settlement
only if the aggrieved woman desires. The procedure for and
during counseling has been stated in Rule 14. It states that
counseling should be carried out by qualified members of
registered Service Providers. The detailed rules are intended at
ensuring that no aggrieved woman is coerced into counseling
and subsequently a settlement. The AP cannot be forced to go for
mediation before seeking the legal remedies such as protection
and residence orders. In situations of grave violence which cause
danger to the aggrieved woman’s physical and mental health, if
the court insists on counseling first, such an approach would
undermine the purpose for which the PWDVA has been enacted
– to provide prompt relief to women facing domestic violence.
It is the responsibility of the concerned advocate(s) to advance
arguments on behalf of the woman if the court directs counseling
in such circumstances.
In a case before the Kerala High Court, where the parties
were involved in eleven litigations against each other before
different fora, in view of the worsening relations between
the parties, the court appointed a conciliator to enable the
parties to settle the disputes between them. Upon arriving at
a settlement, the court said:
“In the light of the discussions the court and the conciliator
had between the parties and thanks to the cooperation
extended by the learned counsel appearing on both sides,
it is heartening to note that peace could be purchased not
only between the parties to the marriage, but also between
the families of both parties. True, they have agreed to
disagree. But we could convince them that on disagreement
also, the parties to the marriage can still be friends. For the
only reason that the matrimonial bond is terminated and
the marriage is dissolved, the parties to the marriage need
not be strangers and enemies; they can still continue to be
friends, and they have to continue as good friends in this
case for the additional reason that they have a child.
(para 3)
– T. Vineed vs. Manju S. Nair 2008 (1) KLJ 525
In the Kerala High Court judgment highlighted above, the court
was of the opinion that an attempt should first be made at courtmediated settlement before commencing the legal proceedings.
As discussed by Lawyers Collective, the intention of the court
in this judgment was to prevent further hostilities between the
parties, avoiding multiplicity of litigations and arriving at an
amicable settlement of all pending issues between the parties.
While this is desirable, conciliation may not be the viable and
standard practice in all cases under the PWDVA. In cases of
domestic violence in grave forms, prioritizing conciliation could
have the effect of compromising the safety, security and dignity
of the aggrieved woman and forcing her back into the violent
home.
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