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INTHEHIGHCOURTOFJUDICATUREATBOMBAY
CIVILAPPELLATEJURISDICTION

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mnm

SUOMOTUPUBLICINTERESTLITIGATIONNO.104OF2015
Dr.JayaSagade,Director
Vs.
TheStateofMaharashtra

...Petitioner

...Respondent

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Ms.JayaSagade,Petitionerinpersonpresent
Ms.UjwalaKajrekarforLawyersCollective
Ms.FlaviaAgnesforMajlisLegalCentre
Ms.VeenaGowdai/b.SumangalaBiradarforTISSandStreeMukti
Sanghatana
Mr.V.B.Thadani,AGPforState
Ms.GayatriSingh,Sr.AdvocatewithVijayHiremathforIntervener
NGO
Mr.MihirDesai,Sr.CounselwithMr.ChetanMaliforIntervener

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CORAM:MOHITS.SHAH,C.J.&
MRS.ROSHANDALVI,J.

DateofreservingtheJudgment:25thJuly,2015
DateofpronouncingtheJudgment:4thSeptember,2015

JUDGMENT:(PerMrs.JusticeRoshanDalvi)
1.

ThepetitionerisaserviceproviderundertheProtection

ofWomenfromDomesticViolenceAct,2005(DVAct)aspart
of women's study center of the ILS Law College, Pune
Maharashtra(Center)wheresheservesasProfessorofLaw.
Thecenterconductscertainworkshopsforjudicialofficersin
variousDistrictsofMaharashtraforsensitisingjudicialofficers
and other stakeholders under the DV Act like protection

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officers as also Advocates, academicians and NGOs. The

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petitionersubmittedsuggestionsforeffectiveimplementation
whichnonehasanycomplaint.
2.

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oftheDVActwhicharewholesomeandpracticalandwith

The department of women and child development of

theGovernmentofMaharashtraissuedacircularon24 thJuly,
2014 regarding one of the aspects contained in the
undertheDVAct.

Whereasthesuggestionofthepetitionerwasthatthere

3.

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suggestions of the petitioner viz., counselling / mediation

isaprovisionofappointmentofCounselorswhoseprimary
dutyispreventingtherecurrenceofviolenceagainstwomen

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byusingfeministcounselling,inpractice,casesarereferredto
Judges called mediation Judges for mediation and the
services of Counselors remain underutilised. She would

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contendthatmediationandcounsellingarenotthesamein
terms of their objectives and procedures. Hence, she has
urgedthatCounselor'sserviceneedtobeutilisedtothefullest

extentbytheCourtstakingupDVcases(DVCourts).

4.

She would contend that the impugned circular with

regard to counselling / mediation under the DV Act is

violativeoftheArticle14beingdiscriminatoryandArticle21
oftheConstitutionofIndiabeingarbitraryanddiscriminatory

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and absolute in nature. She has sought to challenge the

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circularunderherletterdirectedtotheChiefJusticeofthis
CourtwhichhasbeentreatedSuomotoasawritpetitionand

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upon which notices have been issued upon the State of

MaharashtrarepresentingtheWomenandChildDepartment
as also the other State Institutions like the police as also
various institutions and organizations concerned and

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connectedwiththeissuesthatariseundertheDVAct.

Theimpugnedcirculardated24 thJuly,2014directsthat

5.

only after the case under the DV Act isfiled in Court and

directionsaregivenbytheCourtforcounsellingormediation
that counselling or mediation can be carried out and that
outsideagenciescannotcarryoutthoseactivitieswithoutthe

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directionsoftheCourt.Theimpugnedcircularspecifiesthat
those agencies are only allowed to inform the aggrieved
woman of her rights, make available medical and shelter

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homeservicestoherandencouragehertofileacaseinthe
Court either by herselforthroughaprotectionofficer.The
circular is stated to have been issued in the interest of

women.

6.

Indeedthelegislationhasitselfbeingenactedfornot

only the protection, but empowerment of women and for

preventingviolenceagainsther.Specificordersanddirections
thatmayberequiredbyherifsheisviolatedcan,ofcourse,

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only be passed by the Courts, more particularly the

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Magistrate'sCourtsinwhichinvariablytheinitialapplication
is made under Section 12 of the DV Act (though an

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applicationundertheActcanalsobemadetoanyotherCourt
suchastheCivilCourt,orthefamilyCourt,ifanyapplication
orpetitionispendinginthatCourtunderSection26ofthe
D.V.Act).

The object behind the circular is required to be

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7.

consideredwhenapplicationsaremadebyawomanwhois
domesticallyviolatedandtheexercisetocounselherandto

mediatebetweenherandherviolator(morespecificallyher
husband, but also her family members and her inlaws in
severalcases)couldbeundertaken.ThespiritoftheActisas

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much of protecting her as of preventing the violence and

empoweringhertohaveaccesstojustice.Forprotectionand
prevention of the violence counselling has, by experience,

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beenseentobeaneffectiveantidote.

8.

Aftershehasaccessedjustice,theMagistratemaymake

anorder,uponherrequest,oruponseeingherinterestinthat
behalf. Experience has shown that a long period of time
wouldelapseaftertheinitialapplicationismadeandafterthe
Magistrate directs counsellingandmediation under Section
14 of the Act for any relief to be given to her. In the
interregnumtheviolatedwomanmayhavenoremedyinthe

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hope that counselling and mediation would yield the

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necessaryresultendingtheviolenceagainsther. Experience
hasalsoshownthatinseveralofthesecasesmediationfails.

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counselling the woman would, therefore, have served no

purpose.ConsequentlyrulesareframedbythisCourttothe
endthattheMagistratemustnecessarilypasssomeorderor
directiongivingtheviolatedwomansomereliefsosoonasan
applicationisfiledbyherunderSection10oftheDVAct,be

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it interim or even adinterim, even without notice to the

husband or other violators, if required, in granting her a
modicumofmaintenanceamountorareliefofinjunctionin

respectofherresidence,theresidenceofherhusbandetc.,
afterwhichthedirectionforcounsellingormediationunder
Section 14 of the Act could justly be passed. The State,

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having framed guidelines to that end would undoubtedly

require some order in favour of the woman to be passed
beforeneedlesselapsingoftimeforcounsellingormediation.

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Tothatendtheimpugnedcircularwouldservethedeserved
purposeundertheAct.Henceifanapplicationismadebya
woman,anorderisrequiredtobepassedasillustratedabove

andmediationorcounsellingcanthenbegin.Thepetitioner
wouldclaimthatshewouldhavenocomplaintagainstsucha
guidelineorrule.

9.

However the impugned circular does not reflect the

requirement of passing any order in favour of the woman

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upon the case being filed and deals with counselling and

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mediation which would be resorted to by women before a

caseisfiled. Thisiswhatallpartiesbeforeushavetermed

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prelitigationmediation/prelitigationcounselling.Indeed
the circular is clear. It is not entirely in terms of the
guidelinesissuedundertheDVActwithregardtocounselling
andmediation. counsellingandmediationiscontemplated
framedthereunder.
10.

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under Section 14 of the DV Act r.w Rule 14 of the rules

The petitioner as well as various other organizations

which have intervened including Majlis Manch, Lawyers

Collective,TATAInstituteofSocialServices(TIS),StreeMukti
Sanghatana(SMS),BhartiyaStreeShakti(BSS)(interveners)

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have submitted their ground level experiences before the

Court. They are largely similar and may be considered

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togetherthus:

(a) TherearevariousserviceprovidersundertheDV
Act being shelter homes, medical service providers,
counsellingcenters,familycounsellingcenters, NGOs
etc.,someoftheseareprivateorganizations.Someare
registered under the Act though initially having been
private organizations. They are trained counselors.
counsellingisanartaswellasscience. Theycounsel
womenwithafeministapproachsinceDVActdemands

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suchspecialisedcounselling.
(b) ThedictionarymeaningofcounsellinginConcise

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Oxford English Dictionary Indian Edition at page

326isadvice,especiallythatgivenformallyrecommend
give professional help andadvicetoresolvepersonal,
social,orpsychologicalproblems. Thetermcounselling

isdefinedinBlack'sLawDictionary,EighthEditionby

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Bryan A. Garner at page 374 also as advice or

assistance. The term counselling is explained in
Advanced Law Lexicon by P. Ramanatha Aiyar, 3 rd

Edition at page 1092 as an act or process of giving

professionallycompetentadvice.
The concept, therefore, would rule out mere

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information.Ithasbeenrightlyarguedbeforeusthatif
onlyinformationhastobeprovidedsoastodirecta
woman to the service providersandtothe Court the

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agencieswouldbecomeonlyreferralagencies. They
have claimed that they have had experience of
counsellingdecadespriortotheenactmentoftheAct.
Indeed that is an aspect of which judicial notice is
requiredtobetaken.Theirexperienceandexpertisein
thefieldwouldcertainlybewhittleddowntoclerical
work which cannot be termed counselling.
Counsellingbyitsverynaturewouldincludeadvisinga
womanoftherightcourseofactiontoobtainaccessto

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justice.Therequirementofinformingthewomanabout

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her rights and various services would be only a very

smallpartofcounselling.Encouraginghertosuemay

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becomecounterproductiveincertaincases.

Hence this impugned circular would show that

thewomancannotbecounselledoradvisedaboutthe
rightcourseofactionbeforeshetakesrecoursetolaw.
Shewould,therefore,bebereftofsoundadvice,which

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she would otherwise be a privy to, emanating from

experienceofsuchadvisers.Noparty canbe merely
informedoftheirrightsandnotadvicedtheright

course of action before having access to justice in

CourtsofLaw. ThepurposeandimportoftheDVAct
itself, as a special legislation enacted in favour of

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womenunderArticle15(3)oftheConstitutionofIndia,
woulddegenerateintoamereclericalexerciseleaving
thewoman,whowouldotherwisenothaveanylegal

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advice,tothevagariesoflitigation.Thatcancertainly
not be contemplated to be the avowed purpose of a
sociallybeneficentlegislation.
Indeedthestatementofobjectsandreasonsunder
the Act dated 13th September, 2005 is to protect the
womanfrombeingvictimizedbydomesticviolenceand
to prevent occurrences of domestic violence in the
society.Itis,therefore,alegislationtoarmthewoman
frombeingvictimizedbyviolation.Itisonlycounselling

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ofspecialisedpersonswithexpertiseinthatfieldthat

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wouldempowerhertotakechargeofherlifetoprotect
herself and prevent the violation. Such counselling

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would have to be given to the woman ideally long

before she could have contemplated having access to
justice.Itshouldideallycommencewhenshefeelsand
apprehends violence against her, be it physically,
sexually,mentally,psychologicallyoreconomicallyand

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at least so soon asshe becomes the victim ofany of

these.TheActhas,therefore,decidedlynotprohibited
prelitigationcounselling.Infactitwouldhavebeena

grotesquelyinsensitivelawifithad,pronetochallenge
on account of the resultant arbitrariness or
discrimination.Consequentlythereisnovisiblebreach

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ofanylawmorespeciallytheDVActafterawomanis
advisedorcounselledastowhatisbestforher. The
conclusionintheimpugnedcircularthattheprocedure

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contemplated therein would not effect her rights and

woulddojusticetoheris,therefore,seentobewithout
required'sentipathy'.
(c) Itisanacceptedfact,andofwhichalsojudicial
noticeisrequiredtobetakenthattherearenumerous
NGOsnotregisteredasserviceprovidersundertheDV
Actatvariouslevelsinthesoceity,community,religious
groups beginning with the family, friends, mahila

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mandals, women groups, academic institutions etc.,

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whoprovidefamilycounselling.Theseareacceptednot
tofallwithintheprovisionofDVActandhencewould

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not come within the mischief of the circular. They

would, therefore, continue advising women, much as
lawyerswoulddo, uponthewomanavailingoftheir
services. TheStatecannotpreventandtheimpugned
circularhasnotpreventedsuchNGOsfromcounselling

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women.TheNGOswhohavebeenregisteredasservice
providers would, therefore, be treated differently
thoughperformingthesamedutiesequallyastheNGOs

notregisteredundertheAct. Thiswouldundoubtedly
bediscrimination.

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(d) Ithasbeentheexperienceofthepetitionerasalso
alltheintervenerswhohavecontendedbeforeusthat
severalwomendonotdesiretotakerecoursetolaw.

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Thismaybeuponjustifiedorincorrectapprehension,
family and social set up from which they hail and
constraints by which their lives may be governed.
Whateverthatbe,aviolatedwomanmustbeentitledto
thefreedomofchoice.Itwouldbeforhertodecidethe
course of action. It is for the NGOs who have the
expertisetoprovidehertheadvise.ItisfortheStateto
make available to her legal rights which could be
availed upon an informed choice made by her after

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receiving complete and correct advise / counselling.

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This is where a violated woman would negotiate her

own spaces, no part of which can be shut from her.

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Consequently there is a lot of substance in the

contentionofthepetitionerandtheintervenersthatthe
circulargoesagainstthegrainofthelegislationitself
andisnotinharmonywithitsprovisionswhichoptfor

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peaceratherthanwar.

(e) Ontheothersideofthespectrummustbeseen
the right to carry on profession of the trained and

educatedcounselorsmuchaslawyerswould.Thelegal
questionthatwewouldbeconfrontedwithiswhether
anextentionofthecircularcouldlegitimatelyapplyto

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lawyers.CantheStatepreventaviolatedwomanfrom
being advisedorcounselled, sensitively orferociously
byalawyercompetenttopracticelawintheDVCourts?

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The resounding negative answer must legitimately

applyalsotocounsellorswhoaretrainedincounselling
asmuchaslawyersaretrainedinlawtorendertheir
specialised services upon the violation of the human
rightsofthevictim. Thecontentionofthepetitioner
andtheintervenersthatitwouldinfringetherightsof
theNGOsandtheotherserviceproviderswhocounsel
women as much as the women themselves must,
therefore,beaccepted.

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The view of the social scenario also merits a

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(f)

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thought. Saving of a marriage before or soon after

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violence commences or pervades in a woman's life

would result in continuation of the family bond and
socialpeace. Theprovisionforspecialcellforwoman
andchildreninpolicestationsisuponthepremisethat
even where a criminal offence is committed upon a

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violated woman the special cell would treat her

differently in termsof the sensitivity required byher.
The family counselling centers which also render

yeomen services would also be unable to render any

counsellingiftheyareregisteredundertheActasthey

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woulddoiftheyarenot.
(g) Theamorphous,anomaloussituationthatwould
unwittinglyariseuponthearbitraryanddiscriminatory

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circular of theGovernmentisthat ifawoman isnot

violatedshewouldhaverecoursetocounselling,butifa
womanisviolatedshewouldhavenone. Infact,she
wouldbeingreaterneedforcounsellingthanawoman
whomayhaveamatrimonialdisputewithoutbeinga
recipientofviolence.
(h) It is contended that various specialized services
provided under the DV Act as in no other legislation

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themselvesreflecttheneedforanaggrievedwomanto

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availofthoseservicespriortoaccessingtheCourts.The
shelterhomes,medicalaid,legalaidarestatedtobe

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multiple entries aside from the conventional route of

litigation. Such services availed of prior to litigation
wouldbeprelitigationservices.Ifaviolatedwomanis
entitled to those services, there is no logic or reason
shownbytheStateastowhyshewouldnothaveaccess

(i)

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topsychologicalorsocialcounselling.
The contention that there is no duty or power

conferred upon the service providers to provide

counselling or getting services because the much
desiredDVActprovidedthedestinationtotheviolated

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woman to have access to expeditious and simple

procedure in the Magistrate Courts would ignore the
wholesomeneedofthewomantobecorrectlyguided

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through her journey into litigation against her own

familyandpersonsotherwiseclosesttoher. Thevery
spirit of the legislation would require the service
providers to go that extra mile in negotiating and
providingforherpreciselywhatinthefactsofhercase
wouldbethemostefficaciousremedyandcasesofDV
arelikesnowflakes.

(j)

Ithasbeencontendedbeforeus,andofwhichwe

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musttakenote,thatwhenaviolatedwomanaccesses

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criminaljustice,atthefirstpointofentry,whichisthe
police station, she is compelled to settle which

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actually results in forfeiture of her rights. It is

contended that the police resort to mediation and
settlement by calling the husband or advice her
through the police counselling at the social services
branchestofileacaseofcrueltyunderSection498Aof

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the IPC. It is further contended that she is not

counselledbutcompelledtosignconsenttermsthough
itmaynotbeinherinterest.Suchpracticecannotbe

countenanced.Suchpolicepracticecannotbeaccepted
as the mainstream provision of services. A violated
woman must have the last choice. She must be

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informedaboutherrighttochoice.Shemustbeguided
totheextentofherlegalrights. Thiswouldneedthe
specializedfeministapproach;itmaybeprotectionistor

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empowering. It certainly cannot be surrendering or

yielding.
The process of counselling must, therefore,
essentiallytakeintoaccountthechoiceofthewoman
andisessentiallyattheinstanceofthewomanwhen
sheaccessesthepoliceasalsowhensheaccessesthe
Counselors. Followingasacorollary,istheimperative
requirementthatitisonlyifthewomanisamenableto
and accepts that she would negotiate any settlement

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with her spouse that the joint counselling can

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commence. We should certainly frown upon any

practice that would instigate, pressurise or force her

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intoanysettlementwiththehusbandonanyissue.We
deprecate such a practice if it is followed at police
stationsoratanyotherplacesascontendedbyMajlis
Manch showing its ground level experience. Bad
practicecannotmakegoodlaw.Similarlybadpractice

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shouldnotunsettlegoodlaw.Goodpracticesdeserveto
bebackedinstitutionally.Apracticewhichisnotshown
to be prohibited or barred in law and in fact all

pervadingis,therefore,requiredtobesupportedwhilst
laying down guidelines for eradicating bad practices.
Therefore, the remedy lies not in prohibiting the

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practice altogether but in rejuvenating it within

reasonablyprescribedmechanismsandparameters.

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(k) Because certain police officers may act without

sensitivityorevencolludewithotherparties,theother
dedicatedpoliceofficersandevenNGOsandcounselors
who,becauseoftheirspecializedtrainingandservices
havebeenregisteredundertheAct,cannotbesimilarly
treated.Treatingsuchunequalsequallywoulditselfbe
discrimination. The remedy is, therefore, in training
and educating as also directing the police officers to
work in unison with the counselors as service

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arbitrarilyandwithoutsensitivityandempathy.

Itiscontendedthatthepolicedonotrefercases

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(l)

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providers rather than at tendum with them or

toprotectionofficersforproceedingundertheDVAct
astheyareenjoinedtodoundertheprovisionsofthe
DV Act. The remedy for such default would be in
directionspassedagainstsuchpoliceofficers,butnotin

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disallowing counselors who render services

diametricallyoppositetowhatisstatedtobetheservice
renderedbypoliceofficers. TheStateitselfwoulddo

well to sensitize its police officers rather than to

disallowsensitizedservices.

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(m) The contention that the nonState agencies and

theStateagenciesaremutuallyexclusiveandfallunder
two separate and distinct categories would be

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misconceivedseenfromthestandpointoftheservices
renderedbythemratherthantheirdesignations. The
distinctness would, therefore, be in the services
renderedbythecriminalmachinerythepoliceand
thesocialorthecivilagenciesthecounselors.Hence
the argument that if a woman does not desire to
approachtheMagistrate'sCourtthroughtheregistered
channel of the protection officer, the service provider
registered under the Act must refer her to another

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agency which is not a stakeholder under the Act for

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settlingthematterwouldbetoshiftthecaseandthe
burdenofthecaseupontheagencyrenderingsimilar

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services which that stakeholder itself is competent to

render.Nopurposewouldbeservedexcepttopushthe
womanfrompillartopostwhenshecouldavailofthe
sameserviceatthedoorstepthatshehasentered.

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(n) ThedistinctionsoughttobemadebetweenNGOs
whichareregisteredserviceprovidersandNGOswhich
arenonregisteredisnotareasonableclassification.The

nonregistered NGOs are stated to have graduated to

have been registered as service providers. If after
accumulatingexperienceinthefield,theNGOsdonot

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havetheleaveytousetheirexpertiseandtalentsforthe
bestoutcomewhichtheyhadbefore,theirworkwould
degenerate. Such a distinction would be wholly

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arbitraryandconsequentlydiscriminatory.TheNGOs
notregisteredundertheActwouldcontinuethework
of prelitigation counselling, which may be
psychological counselling, but the NGOs which are
registeredwouldnotbeallowedtodoso. Thiswould
result in the registered NGOs withdrawing their
registration to be able to conduct the counselling or
otherNGOsnotseekingregistration.Theaftermathof
suchascenariowouldbeselfdefeatingandtheonenot

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contemplated under the legislation. This would

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culminate into violating the fundamental right of

carryingonfreetradeandprofessionbytheregistered

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CounselorsunderArticle19oftheConstitution.

(o) The lack of awareness of many women of the

legalrightsandpositioninlawisatruism. Itisfor
thatpurposethatsheneedstobecounselledandthe

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advisethatshereceiveswouldincludetheknowledgeof
all that the law provides so that she can make the
ultimatechoice.

The contention that each woman desiringto be

advised / counseled must be referred to Courts is

againstpublicpolicyitself.Eventhecontentionthatthe

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settlement by way of consent terms arrived at pre

litigationwouldnotbebinding,thoughcorrect,isnot
thereasonforitnotbeinggivenatry.Thearguments

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oftheintervenerswouldshowthousandsofcasesbeing
amicablysettled.If,however,unfortunatelysomecases
arenotsettled,thewomanwouldbenearertheCourts
afterafailedexperience. Aspointedouttousinthe
submissions of the Lawyer's Collective, the failed
settlementwoulditselftantamounttodomesticviolence
uponwhichaDomesticIncidentReport(DIR)couldbe
filed under Section 12 of the Act to commence the
judicialprocessintheMagistrate'sCourt. Experience

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has shown that there may be initial obstacles and

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failuresbeforealastingsolution.Thesolutionmaynot
beonlyreconciliation,butamicableseparation,which

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wouldendtheviolenceuponthewoman. Ifitisnot
achieved prelitigation, it can be achieved post
litigation.Itisrightlystatedthataleancompromiseis
betterthanafatlawsuit.Thiswouldapplyasmuchto
civillitigationastoviolentvictimization.

Thefurthercontentionthatcounsellingistheeasy

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optionforprotectionofficersistodenigratetheirrolein
a noble service. What is contemplated by a good

settlementiscertainlyasettlementinaccordancewith
lawwhenpowerbalancingisdonebythecounseloror
the mediator between two parties having unequal

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bargaining strengths and not an enforced settlement

derogatory to a woman's human and legal rights.
Consequentlywecannotacceptthecontentionthatthe

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service providers while acting as gateways to secure

justicewouldbebarrierstowomeninaccessingrights.
(p) Counsellingthewomanisaonesidedcalling. It
mustendinapositiveresult. Thiswouldrequirethe
oppositeparty,inmostcasesthespouse,andhisfamily
members,tobebroughtbeforethecounselorsalsotobe
consultedsothatthetwosidescouldendtheirdisputes
in an amicable solution. This service is what is

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popularly called mediation. The mediator creates

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options for settlement between the disputant parties.

Thevariousoptionswouldessentiallyendthedomestic

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violence. It would prevent the woman from further

violenceandprotectheragainstfurtherviolence. The
option may result in reconciliation or amicable
separation. It is, therefore, that the petitioner has
rightly stated in her suggestion to the Court that

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mediationandcounsellingarenotthesameintermsof
theirobjectsandprocedures.Itwould,therefore,have
tobeseenwhetherprelitigationmediationwhichisnot

barredundertheDVActiscontemplatedtherein.Itis
indeed contemplated as a measure of social justice

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undervariouslegislationsandpolicies.
(q) Theymaybeennumeratedthus:

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1.

Section89CPC,whichincludesmediationand

LokAdalatas.
2.

Order10Rule1ACPC,whichshowstheideal

timetoreferCivildisputestomediation.
3.

Section19LegalServiceAuthoritiesAct,1987,

which relates to establishment of Lok Adalats to

arriveatcompromiseorsettlement.
4.

Sections 6 & 9 Family Courts Act 1984

providingforconciliationandsettlementofdisputes

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between parties to a marriage and other related

5.

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parties.

Section 498A relating to offences of cruelty

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between spouses which could be referred to

mediationandcompoundedthroughtheHighCourt
inawritpetition.
6.

Prelitigationdesksandclinicssetupinvarious

Courtsandsociolegalcenters.

Mahiladeskatthepolicestations.

8.

The policy of law as enunciated in judicial

precedents.

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7.

The purview of these laws would show the

amenabilityofthelawtoencourageamicableresolution

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ofdisputes,civilasalsofamily,ratherthananybarto
providingthecounsellingservicewhichisnotexpressed
under the legislation. The fact that counselling is

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providedwouldbeapointertoapresumptioninfavour
of any kind ofcounselling,prelitigation,litigation or
postlitigation.Theonlyrideristhatitwouldbeupon
thevolitionofthewomanandcannotbeforcedupon
her.

Upon seeing the array of legislation as also

practiceofCourtsitisinconceivablehowinacaseofa
woman who has suffered some form of violence her
counsellingorevenjointcounsellingwithherspouseor

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even with any members of her family cannot be

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envisaged or can be taken to have been impliedly

barredorprohibited.

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(r) Section10(1)oftheDVActmakesprovisionsfor
legalaid,medical,financialorotherassistancethatis
renderedbyanypersonorinstitutionwhichwouldbe
eligibletoregisterhimself/herself/itselfasservice

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provider. It is legitimately argued that the other

assistance would contemplate the inclusion of pre
litigation counselling. Indeed the provision is not

exhaustiveandcannotbecontemplatedtocontainthe
bartocounsellingamongstotherservices.

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(s) We have been given various statistics of the

numberofcasessettledbyamicableseparationorby
reconciliation between the parties as also the various

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cellsandcounsellingcenterswhichhavecomeupunder
theAct.Weneednotgointothosestatistics.Sufficeto
saythatalltheworkofsettlementofanynatureisnot
onlycontemplatedundertheDVAct,butdoesnotgo
againstthespiritoftheActorbecounterproductiveto
women.

11.

Lawyers' Collective has enumerated other related

servicesrenderedbyCounselorsbeingemotionalsupportand

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riskassessmentandmanagementwhicharecomplimentaryto

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thenegotiationsforsettlement.Itisstatedtobeduetothe
wholesome services rendered by the service providers that

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several women have come forward to report domestic

violence. Her prerogative in doing so cannot be snatched
awayby the Government. Thiswouldrestrict theviolated
woman'savenuesofusingmechanismsprovidedbythelaw
forredressalofhergrievance.

Lawyers'Collectiveinitsreporthas,therefore,rightly

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statedthatcounselling,asthefirstportofcallisaremedy
initselfandisaforumwherewomenareofferedaneutral,

nonjudgmental,safeplacetodecidetheircourseofaction.
Hence,itiscontendedthatinseveralcases,upontheconsent
ofthewomanbothpartiesarecalledfornegotiatinganon

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violentoutcome.

12.

All the interveners including TISS have set out their

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experiencesofseveralwomenpreferringjointcounsellingto
settletheirdisputestothetardyjudicialprocess.Theyhave
also experienced irreversible adverse consequences to the

familyandintimaterelationshipsofwomenwhohavechosen,
even upon perceived constraint, the course of litigation
withoutachanceatsettlement.

13.

The remedy of counselling and joint counselling is

requiredtobefolloweduponusingjudiciousdiscretion.Itis

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trite that several women take recourse to the Magistrate's

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Court under the D.V. Act for various orders including

monetaryreliefs(Section20),compensationorders(Section

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22) aside from the usual relief of the right to reside in a

shared house (Section 17) or other residence orders and
injunctions(Section19)andalsoordersrelatingtocustodyof
children(section21).Notallofthesereliefsarenecessarily
urgentinnature.Notallofthemarealsononnegotiable.It

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wouldbefortheCounselorandtheNGOswhomaybethe
serviceproviderstoprovidetherightservicetothewomanin
guiding her to make the right application. Experience has

shownthatapplicationsaremadebyseveralwomenonlyfor
maintenanceorders.Thoseapplicationsareeminentlysuited
for settlement by joint counselling. Even certain residence

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orders, which may be required alongside the maintenance

ordersmaybeworkedoutbycreatingoptionsfortheparties
tonegotiatetheirdisputesandconsequentlythesettlementof

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theirdisputes.

14.

The case of the State that the functions of service

providersarelimitedtotheservicesenumeratedinSection10
oftheDVActandthatthereisnoprovisionintheDVActfor
prelitigationcounsellingandhenceitmustbebarredisto
read a socially beneficent legislation without regard to the
objectiveitseekstoserveandthestridesitseekstomakefor
domestic peace and harmony in the Country. Indeed a

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settlementarrivedatwouldnotbelegallybindingifanyparty

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to the settlement seeks to ignore or breach it. But the

consequenceofabreachofanylegallybindingsettlement

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wouldbenobetter.

The other interveners including TISS have shown a

remarkable procedure adopted by them to meet ends of

justice;TheymakethespousessignanAssurancePaperto
combattotheextentpossible,thebreachofsettlement. If,

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however,theundesiredresulthappens,recoursetoCourtas
thelastbastionofjusticewouldbeavailedifthesagacious
procedureadvocatedbytheLawyer'sCollectiveisfollowed;a

DIRisfiledalready,tobeavailedbytheaggrievedwoman.
15.

The malaise of domestic violence is universal. It

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pervades wherever humans exist in varying forms and

degrees and across class, caste or country lines. Various
initiatives in combating violence have been undertaken

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globally.AlandscapeAnalysisofDomesticViolenceLaws
publishedinDecember,2013demonstratescasesofvictims
andthesupportservicesprovidedinseveralcountriesbeing

shelter,medicalassistance,legalhelp, mediationservicesto
facilitate reconciliation of parties, telephone hotlines giving
free support adviceandgenderdesks. The legislation of
some countries expressly provide for mediation with both
partiestostopviolence. Thereareinterventioncentersset
up in various countries that work at various levels. The

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article on Domestic Violence Legislation and

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ImplementationAnanalysisforAseanCountriesbased
on International Standards and Good Practices

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publishedbyUNWOMEN.ThearticleonDomesticViolence
anditsimplementationconsiderstheCEDAWperspectivein
Asian Countries which bear references to prelitigation /
mediationandcounselling.

The General Recommendation No. 99 of the CEDAW

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Committeeinteraliarequires protectionmeasures,including
refuge,counsellingrehabilitationactionandsupportservicesfor

womenwhoareatriskofviolence.

This denotes, inter alia, counselling before even

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violenceisperpetrated(pg.24).

ThepurposeofDVLegislationaspertheUNFramework

forModernLegislationinteraliaprovidesto:

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(g) to establish departments, programmes, services,

protocolsandduties,includingbutnotlimitedtoshelters,
counsellingprogrammesandjobtrainingprogrammesto
aidvictimsofDVand
(h) .
(i) to enumerate and provide by law comprehensive
supportservices,including,butnotlimitedto:
(i)

..

(ii) ..

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(iii) Education, Counselling and therapeutic

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programmesfortheabuserandthevictim.(pg.24,28&
31)

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(iv) .

Theseareapointertotheextensiveworkbeingdonein

counsellingboththespousesprelitigationandevenprerisk
factors.

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Infact,theDVLawislargelyreferredtoseparatelyand

distinctlyfromotherlawsthus:

What distinguishes DV Laws from other laws is that

theselawscontainprovisionsofmultiplesocialservicessuchas
counselling,shelterandmedicalhelp.
This demonstrates that the social services are the

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forerunner to the legal and judicial services accessed by

womenandprovidedbytheState.
Wehavenotbeenabletotraceanyreferencetoabar

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createdbylawtocounsellingatanystage.Wemaystatethat
the best possible time for such counselling as also joint

counsellingisbeforetheactofviolenceescalates.

16.

Ofcourse,physicalviolencetoawomanisacomplete

anathema to settlement. No woman can be counselled to

settleorresidewithaviolenthusband.Thedangerwhichis
contemplatedbytheGovernmentinmakingoutacasethat

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counselling would result in an increased risk of domestic

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violence,whichmayrecurwouldbejustifiedonlyincasesof
physical violence. We trust that sensitized counselors and

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service providers dedicated to the cause of protection and

empowermentofwomenoreventhepolicewouldnotguide
orcounselhertoacceptortoliveinconditionsofphysical
violence. We are aware ofcasesthat have resultedin the
woman ending up in flames upon her parents and family

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membersguidingherorprevailinguponhertocontinueher
marriage in the home of a violent husband. We would
certainlynotcountenanceorlendanysupporttoanypractice

by any State authority or individual who would put in

jeopardythepersonofthewomanbyguidingorcounselling
hertocontinuehermarriageorherresidencewithherspouse

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undersuchcircumstances. Suchawomanwouldneedand
deserveaprotectionorderprotectingherresidenceeitherin
hersharedresidenceorhermatrimonialhomeoroutsideit

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wheretheviolencewouldnotrecur.InsuchcasesaDomestic
Incident Report (DIR) of the incident of physical violence
underSection10(2)oftheD.V.Actmustnecessarilybefiled

bytheCounselororanyotherserviceproviderincludingthe
police through the Mahila Desk before commencing
counsellingorsoonthereafterandmakeanapplicationunder
Section12oftheDVActbeforetheMagistrateforobtaininga
suitablerelief/order. Henceinsuchcasesindeedtheonly
wiseCounselwouldbetotaketheviolatedwomanoutofthe

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venueofviolenceandobtainforhertherequiredprotective

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order from the Magistrate. In those cases, only after a

conciliationbecountenanced.
17.

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modicum protection order is passed can any further

In fact, it is recommended by the Lawyers' Collective

that it would be asoundpractice that aDIR may be filed

under Section 10(2)(a) of the DV Act after the woman

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consentsbeforecommencingcounsellingsoastoconstitutea
record of domestic violence to be followed up by an
application under Section 12, if required for seeking the

reliefs under the Act. This could be complemented by the

practice of executing Assurance Paper by the negotiating
partners,whichinseveralcaseswouldbehonoured.
Theproceduremaybeinformedtothehusbandalong

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withthefactthatuponanybreachofthesettlemententered
into, the DIR would show prima facie the occurance and

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recordofdomesticviolence.

18.

In a case where a woman only needs or requires a

maintenanceorderuponshehavinglefthersharedresidence
ormatrimonialhomeconsequentuponanydomesticviolence
caused to her, which may be mental, psychological or,
economical,prelitigationcounsellingwouldbetheanswer.

19.

TheCounselormustthenknowhowfartogo.Wetrust

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that after reasonable counselling of the woman and

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conducting any joint counselling with the spouse if a

reasonable agreement is reached, the Counselors will have

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served the purpose of their profession and the violated

womanmayhaveacquiredpeacethroughsettlement.Insuch
casesthemandatorychanneloffilinganapplicationwithor
without the DIR and then proceeding for the inevitable
settlement may be an exercise in futility and consequent

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waste of time and resources in obtaining through Court

wouldhavebeenobtainedonlythroughtheCounselorearlier.
Consequentlyspecificethicalguidelinesandprincipals

20.

whicharestatedtohavebeenevolvedwhichguidethework
ofNGOsandwomen'sRightsOrganizationsascontendedby

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the Lawyer's Collective must allow the NGOs and service

providers to work in the ultimate result within a free and

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unfetteredframeworktonegotiatenonviolence.

21.

Wearegratifiedtonotethatallorganizationswhohave

sought to appear have favoured self regulatory, ethical

guidelinesrootedinprincipalsconsistentwithfamilylawsas
alsotheD.V.Law.Itmaybementionedthatevenrecourseto
section14oftheD.V.ActandRule14undertheD.V.Actmay
bemadeonlywiththeconsentoftheviolatedwomanandin
accordancewithspecific,expressguidelinesinvitedfromthe
Bench.

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Theissuesinthiswritpetitionmustnecessarilybenon

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contesting. The ultimate aim is to provide a fair, just,

negotiationsforawoman.
22.

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meaningful and substantial one time settlement through

We,therefore,feelcompelledtosetasidetheimpugned

circularissuedbytheStateofMaharashtradated24 th July,
2014asbeingdiscriminatory,arbitraryandunreasonablebut

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notwithoutlayingdownguidelinesfortheframeworkofthe
prelitigationcounsellingconductedbyanyoftheregistered

serviceprovidersincludingNGOs,Counselors,policeetc.
23.

Hencethefollowingorder:
The circular issued by the State of Maharashtra

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1.

dated 24th July, 2014 is seen to be discriminatory,

arbitraryandunreasonableandisaccordinglyquashed

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andsetasidesofarasitconcernsdirectionswithregard
to counselling of women who have approached any
service provider including any NGO or the police or
withregardtojointcounsellingormediationwithher
spouse/husbandorherfamilymembers/inlaws.

2.

Itisdeclaredthatanywomanwhohassuffered

anyformofdomesticviolenceasdefinedintheDVAct
and who has accessed the services of any service

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provider provided thereunder including NGOs,

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Counselorsorthepolicemaybecounselledwithregard
to the course of action which she can take including

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jointcounselling/mediationwithherspouse/husband
or her family members / inlaws subject to the
followingdirections/guidelines:

(a) A violated woman must be informed about her

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righttochoiceofthefuturecourseofaction.Sheshall
havethelastchoice.Shemustbeguidedwithregardto

herlegalrightsundertheDVAct.

(b) Thereshallbenopressureorforceuponherto

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settleherclaimorgrievance. Thejointcounselling/
mediationshallbecommencedonlyuponthevoluntary,

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informedconsentoftheaggrievedwoman.
(c) Theserviceprovidersincludingthepolice,NGOs
andCounsellersshallprominentlydisplayintheiroffice
the fact that the aggrieved woman who has accessed
theirserviceshallhavethechoiceofthefuturecourse
of action andthat anyjoint counsellingor mediation
withherspouse/husbandorherfamilymembers/in
lawsshallonlybedonewithherconsent.

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(d) No joint counselling / mediation shall be

undertaken in a case of serious physical domestic

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violence suffered by any woman. In such cases the

service provider including the police, counseller or
NGOs shall forthwith file a Domestic Incident Report
(DIR)underSection10(2)(a)oftheDVActandmake
an application under Section 12 of the Act to the

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relevantMagistrateseekinganyofthereliefsprovided
undertheDVAct.

(e) InallothercasesofDVtheNGOs,Counsellorsor
the police, preferably through the Mahila Desk may
undertake counselling of the woman and even joint

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counselling / mediation of the woman with her

spouse/husband,familymembers/inlawstosettle
the dispute amicably either by reconciliation or

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amicableseparation.
(f)

Uponthepartiesenteringintoanysettlementan

Assurance Paper or Terms of Settlement may be

enteredintoandexecutedbytheparties.
(g) Upontheaggrievedwomanaccessinganyservice
provider including the police, counsellors, NGOs, the
service provider may,if considered appropriate, file a

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oftheDVActintherelevantMagistrate'sCourt.

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DomesticIncidentReport(DIR)underSection10(2)(a)
Thefactofthefilingofsuchreportanditsimpact

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may be informed to the husband along with the fact

that upon breach of the settlement entered into, the
report would show prima facie the occurance and
recordofdomesticviolence.

Wetrustwehavetakencareoftherecommendations

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24.

made by the petitioner and addressed the specific issues

raisedbythepetitionerinherlettersdated10thMarch,2015.
Thepetitionisdisposedofaccordingly.

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25.

(CHIEFJUSTICE)

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(ROSHANDALVI,J.)

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