In a PIL filed in the Delhi High Court by four survivors of domestic violence, the petitioners seeked mandatory FIRs against perpetrators in domestic abuse cases as opposed to forceful mediation. The survivors pointed out that when women approach the police to file cases against their husbands, they are deferred to mediation despite there being clear signs of abuse.
The ethical dilemma surrounding mediation
Mediators are usually a neutral third party which help the parties involved in a dispute reach mutually agreeable solutions. Mediations are often taken to avoid court trials.
Recourse to mediation in domestic violence cases is indeed a contentious issue. Many have rightfully pointed out that mediation dilutes the idea that domestic violence is a criminal offence. On the contrary, since marital conflicts in India fall under the ambit of mediation, in domestic abuse cases, mediation might be the most appropriate way to address and tackle the power imbalances at play since litigation is expensive, time consuming and force the victim to relive the psychological trauma in front of a counsel.
image source: HerZindagi
Free will instead of coercion – argues the PIL
Sangeeta and Ors. v Union of India – The Delhi High Court on Wednesday asked the Central and State governments to respond to a plea demanding that registering first information reports (FIR) on complaints by women alleging physical violence by their husbands must be binding, instead of necessitating that they first go through a mediation process.
A division bench at the Delhi High Court comprising Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula heard submissions on the case earlier today before issuing notice. The Court said that the matter will be further heard on 22nd November.
The petitioners sought directions to be issued to the authorities to ensure that the victims consent to the case being referred to mediation or conciliation instruments.
The petition also sought the modification of the two standing orders issued by the Delhi Police in 2008 which created the Special Police Unit for Women and Children and it also laid down the protocol for registering cases under section 498 A of the IPC, which was further reiterated by the 2019 standing order.
The petition contended that these orders place disproportionate emphasis on reconciliation between the abuser and victim, even in instances of grave physical violence or serious non-compoundable offences including attempt to murder and grievous hurt.
The plea befittingly identified the failure of the authorities to take cognizance of such serious offences, despite the unwillingness of the women to reconcile, which results in the perpetuation of violence against them and sustains violation of their basic fundamental rights under Articles 14, 15, 19, and 21 of the Indian Constitution.
Senior Advocate Rebecca John represented the petitioners and argued that they have faced physical abuse from their husbands, in addition to coming from poor backgrounds.
Additional Solicitor General (ASG) Chetan Sharma representing the Central government argued that although the concerns raised in the petition were genuine, the government’s measures were sparked because Section 498A of the IPC was being abused “left, right, and centre” and it was necessary to be mindful of this fact.
John countered that no one files more false complaints than the State and it is unfair that the burden of false complaints always falls on women. The Court then proceeded to issue notice to the government and made no further comments.
In their plea, the petitioners pointed out that the CAW (Crime Against Women) cells run as parallel mechanisms of law enforcement in the criminal justice system and it is only when these proceedings fail in multiple rounds of mediation (the process can take over 6-12 months) that the CAW Cell refers the case to court for a direction to file an FIR.
Additionally, while such a mediation process is going on, the perpetrators almost always continue abusing the victims who may even face aggravated abuse and be coerced into withdrawing the case. Such power imbalances in these cases favour the abuser and psychologically harasses the survivor, the plea further noted.
