The Indian courts suffer from a backlog of 33 million cases. Alternate dispute resolution mechanisms have become an important tool of settlement, owing to their speedy nature of dispensing justice. These mechanisms provide for out of court settlements of matters at the convenience of the parties and with their consent. Mediation has thus gained popularity especially in matters related to family or matrimonial disputes.
When it comes to mediating in domestic violence cases, there are two opposing ideologies that continue to subsist. The first one is that mediation is suitable even in certain domestic violence cases due to its inherent nature of safeguarding relationships and providing for speedy justice. However, on the other side of the axis, there is a disagreement with regards to mediating such cases as the perpetrator gets away without any penal sanctions.
Mediation in Domestic Violence Cases Under the Indian Law
Section 89 of the Code of Civil Procedure, 1908 states that “where it appears to the court that there exists an element of settlement, the court may refer the same for mediation”. The Protection of Women from Domestic Violence Act, 2005 is a civil law under which civil remedies are provided to the aggrieved person (which can only be a woman).
In Vijaya Baskar v. Suganya Devi, the Madras High Court held that the object of the Act is to enable the victim to live in the matrimonial family atmosphere. The Act does not intend to snap off the relationship of the wife with the husband or his family.
Keeping in mind the ratio given by the madras high court and the applicability of Section 89 of the CPC to the proceedings initiated under the Act, the law seems to tune in favour of mediation at any stage in such cases. Under Section 14 of the Act, the magistrate may also direct the parties to undergo joint-counselling akin to mediation. Further, sub-rules 7, 8 and 9 of Rule 14 of the Protection of Women from Domestic Violence Rules, 2006 envisage efforts to arrive at a settlement through such counselling.
Thus the intent of the legislature is evidently clear with the legal framework formulated to effectuate amicable settlement between parties, for which mediation is the biggest step forward.
Mediation of Domestic Violence as a Criminal Offence
Section 498A of the Indian Penal Code deals with ‘cruelty’ against a woman by her husband or his relatives. The act is thus a criminal offence under the penal code. It is cognizable which means that a police officer can arrest the accused without a warrant. It is also non-bailable which means bail to the accused cannot be granted as a matter of right and is the discretion of the court which has jurisdiction. Thus, we can concur that this offence is taken to be a serious and grave offence by the law.
Section 3 of the Protection of Women from Domestic Violence Act, 2005 defines ‘domestic violence’. Since the purpose of the act is to protect women from domestic violence, the term has been given a broad and comprehensive definition. It encompasses the definition of ‘cruelty’ under Section 489A. However, the latter, being an act of a criminal nature, is not compoundable. Thus, it may prima-facie appear that mediation will not be possible in cases of domestic violence which are filed under Section 498A.
However, the judicial position has been contrary. The courts have frequently referred the parties to mediation and have shown no reluctance in doing so. In Mohammed Mushtaq Ahmad vs State, a complaint was filed under section 498A. However, despite being a non-compoundable offence, the court directed the parties to mediation under Section 89 of the CPC to amicably settle the dispute. Further, in various cases related to section 498A, the courts have held that even if the offences are non-compoundable and the court is satisfied that the parties have settled the disputes amicably without any pressure, the court can quash the criminal proceedings in respect of such complaints. The courts have thus taken a view to promote amicable settlements between parties by way of a compromise rather than moving forward with criminal proceedings in order to secure the ends of justice.
Recently, the judgment given by the Supreme Court has provided for quashing of charges under section 498A on the basis of an amicable settlement between the parties. Therefore, the apex court’s stand in such cases is evident as being a pro-mediation one.
There are about 33 million cases pending in the Indian courts today, and it will take about 360 years to clear the backlog. Realising the importance of speedy dispensation of domestic violence cases, the Supreme Court has suggested making section 498A compoundable as criminal trials lead to immense suffering for all the victims. Pursuant to this, the Law Commission of India in its 243rd report recommended that the offence be made compoundable with adequate safeguards in consideration of both pragmatic realities and the need for expeditious disposal of such cases. Resolution by way of mediation or conciliation will thus be the go-to mechanism to settle these cases.
Ethicality and Feasibility of the process
Mediation drifts away from the retributive model of justice by bringing about reconciliation by a mutually agreeable consensus settlement. It is pertinent to note that about 86% of women (Indian law only recognises women as victims of domestic violence) never report domestic violence due to fear of escalating the conflict. Mediation can thus help establish a workable solution which will secure the needs and interests of the parties and better the condition of victims.
However, this does not imply that all domestic violence cases are fit for mediation. It is undisputed that grave cases of domestic violence are not appropriate for mediation because a lack of consideration for the victim’s safety might lead to re-victimisation of the abused. It is important for mediators to keep in mind the basis of past abuse, risk of future violence, threats of homicide or suicide, and a lethality assessment as well.
The legal position adopted by Indian courts is not without safeguards. Courts have adopted an approach to refer only “appropriate” cases for mediation. However, it is mandated upon the judges to ensure that such an exercise does not lead an erring spouse to use mediation to get released from the clutches of the law. The courts have also been cautious to compound such offences only after ensuring that the victim was under no threat or coercion to settle the dispute. Further, only if the court is satisfied that the parties have settled amicably and without any pressure, it can pass an order to quash criminal proceedings in order to do substantial justice.
Keeping in mind all the aforementioned rationales, it can be said that it is feasible to mediate in domestic violence cases (except one’s of a very serious nature). However, certain safeguards must be put forward. The mediator plays a key role in maintaining a safe environment for the victim. Recognition of power-play and ensuring a balance of power in all cases is important as well. It must further be ascertained that the mediation is voluntary on the part of the victim and without any pressure or fear of consequences. Lastly, in order to determine whether the dispute can be mediated upon, the mediator should conduct screening prior to, and continue to screen throughout the process as well.
Apart from the question of delayed justice, there is also another aspect that is often overlooked: the low conviction rates in domestic violence cases. The conviction rate is an average of 13% because the benefit of the doubt is always given to the accused. This implies that in most cases where domestic violence actually happens/occurs, the perpetrator is acquitted and the victim does not have many options to secure justice. This becomes exceptionally tough in cases where there is a background of women exhibiting financial dependence on their spouses. In such cases, mediation seems to be a viable option as it can play a role in amicably settling disputes so as to provide some relief to the victim.
However, despite this, it is important to know where to draw the line. Mediators are good assessors of the relationships and power-dynamics of parties. The magnitude of violence, consent, and power play should be thoroughly assessed. Mediation as a form of redressal ensures a platform for effective participation of victims in decision-making, as opposed to going to courts. Many victims also fear that the harassment will increase if they approach the authorities. Hence, mediation as a model of constructive conflict resolution can help parties resolve the dispute and eliminate violence.
Sarah Ayreen Mir is a penultimate year law student at Christ University. She is also an Editor at Nickeled and Dimed.