Presentación y análisis del test

The psychological and emotional harm caused by domestic violence can be substantial and continue long after a Court has issued relief. But Court intervention should not be the only remedy available to women facing domestic violence. Counselling should be available too. It may be difficult for a woman facing domestic violence to take an informed and well-thought out decision as to her current circumstances and future course of action all by herself. Counselling aims to help a woman recognise and evaluate her own specific needs, thereby enabling her to take the first steps towards informed decision-making.

The PWDVA does not contain any explicit provisions on pre-litigation counselling, except to state that it is the duty of the PO to maintain a list of counsellors available in her/his jurisdiction to whom she/ he can refer any aggrieved person who desires counselling services (Section 9 of the PWDVA and Rule 8 of the PWDVR).

However, the Act does contain detailed provisions on court-mandated counselling, beginning with Section 14(1) which states that, “The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counselling with any member of a service provider who possesses such qualifications and experience in counselling as may be prescribed”.17 _{As per the Act, counselling may be undertaken with the aggrieved person alone, the}

respondent alone or jointly with both parties.

The purpose of providing such detailed guidelines in the law is to recognise domestic violence as a human rights violation that merits a comprehensive legal/institutional response rather than treating it merely as an ‘internal family matter’ that can be settled through informal mediation that could effect forced reconciliation. Under the PWDVA, counselling is recognised as an arena of technical proficiency, mandated to be conducted by professionals, in conditions that enable and focus on the woman’s human rights and, as per Rule 14(3), only upon the furnishing of certain undertakings by the respondent that ensure there will be no future acts of violence. Finally, settlements must be attempted only if the aggrieved person so desires. As a civil law, the PWDVA does allow space for negotiations between the parties, an option that is not available under criminal law. Given this allowance, the provisions on counselling are intended to ensure that all negotiations are entered into keeping in mind the objective of the law: i.e., a woman’s right to a violence-free home. The counselling process must respect the woman’s agency and ensure that any settlements concluded are done so with the woman’s free and informed consent and aim to create a violence-free home.

When counselling is conducted by lay people, there is a significant risk that the process followed and results achieved do not respect a woman’s agency and fall short of basic human rights standards. If PO’s conduct counselling themselves, an added concern of an explicitly legal nature arises from the duality of their role: namely, that in the pre-litigation stage, the role of the PO is to assist the aggrieved woman; but in the post-litigation stage, the PO is deemed to be an officer of the Court and assists the Court in discharging its functions. Pre-litigation counselling by a PO can create a potential conflict of interest vis-à-vis her/his position as an officer of the Court.

The remainder of Part 5.3.6 addresses the specific and limited duties of the PO with regard to counsellors. As per Section 9 and Rule 8 mentioned earlier, the PO is responsible for maintaining a list of Service Providers, including counsellors, in her/his jurisdiction. In order to maintain such a list, the PO must:

Invite applications from SPs seeking particulars of the professionals whom they wish to register as counsellors under the Act.

Inspect all the applications and forward a confirmed and formalised list of available counsellors to all the concerned agencies, especially the Magistrate.

Ensure that the list is current by regularly updating it every three years and duly forwarding the updated list to all the concerned agencies, especially the Magistrate.

We suggest the following guidelines to POs regarding the appointment of counsellors:

Counsellors must be qualified professionals.

Counsellors must have experience with cases of domestic violence and have knowledge of the psychosocial theories associated with the issues of domestic violence and its historical and political significance.

Counsellors must have an understanding of the PWDVA and of the basic court procedures in which they are participating.

Counsellors must be aware of how to create settlements and undertakings that will be enduring and admissible in court.

Both the counsellor and the counselling centre need to be easily accessible and safe for the woman.

Counsellors must be able to network with other SPs so as to provide the aggrieved person comprehensive assistance.

Counsellors must have an established system of recording and maintaining documentation on cases.

Counsellors must either already have or be willing to build a system of monitoring and evaluation of their work.

Counsellors must have expressly stated ethics and should not be affiliated to any parties, political, religious or otherwise.

Once the Court has mandated counselling, the counsellor works under the general supervision of the Court or PO or both. Rule 14 of the PWDVR describes in detail the procedures to be followed by counsellors.

Finally, we must distinguish between some commonly misused terms. Although the PWDVR do not refer to mediation, joint counselling, which is akin to mediation, is appropriate in cases where the parties are desirous of a mediated settlement. However, just as an aggrieved person should not be compelled to

undertake single counselling against her will, the Court should not direct joint counselling if the woman objects.

Joint counselling is not the same as reconciliation. Prevailing understandings of counselling within legal discourse often focus on reconciliation between the parties, particularly with regard to matrimonial and family disputes. Unfortunately, counselling has come to be identified with settlement and reconciliation. The terms are different. Counselling is the process whereby those counselled attempt to come to terms with their experiences and plan accordingly. A settlement is an agreement between parties to resolve a dispute. And, in matrimonial matters, reconciliation usually means that the husband and wife have begun to live peacefully as spouses once again. Regardless of the term used, the goal is to avoid having the

woman return to a violent home.

There is a practice in some states that all cases under Section 498A, IPC are automatically referred for reconciliation, even before filing an FIR. Often the police refuse to take any action unless a counselling attempt, often supervised by the police themselves, fails. The practice is a poor one because it fails to empower the victim.

Moreover, a PO or counsellor should never attempt reconciliation of a couple as a crisis management technique. The safety of the victim should take precedence over all other steps taken

during the crisis period. Close coordination between all protective services agencies (the police, the courts, legal aid and specialist NGOs, including shelter providers and medical facilities), is vital for the woman to remain safe. This goal takes priority over family reunification or the resolution of ‘relationship issues,’ and should be the foundation on which all treatment decisions, like counselling, are made.

Chapter 6