THEME: Mediation and Women’s Rights
This article was authored by Swagat C.R and Nidhi Gupta from the School of Law, Christ (Deemed to be University).
Abstract
The prevalence of domestic violence in India especially against women is a cause of concern not only for society as a whole but also for the courts of law, upon whom the responsibility is cast to deliver justice in these cases. The excessive burden on the courts may be relieved through the use of alternative dispute resolution mechanisms such as mediation, however, this raises the question as to the concerns of using mediation in resolving domestic violence cases, which are generally criminal in nature. Upon an analysis into the issue, the main concern is the balance of interests of various stakeholders in the domestic violence incidence such as the abuser, the victim, children, the courts as well as society as a whole. This paper aims to propose solutions to incorporate mediation in domestic violence cases in such a manner that the advantages of the mediation process remain, while the disadvantages of the same are minimised. The paper will highlight the solution that may be utilised in the cases of domestic violence against adults, however will also aim to emphasise the risk of using mediation in domestic violence against children. The regulated use of mediation in domestic violence cases must be encouraged, as has been the case in various judgements delivered by the courts in India, in a manner by which the threat of sanction remains and the stakeholders are benefitted.
Key Words– Domestic Violence; Mediation; Abuser; Interest; Society; Child.
Introduction:
Domestic violence constitutes the violent, forceful, abusive, coercive or threatening acts inflicted by a member of a family, within their household, upon another.[1] The key elements to any case of domestic violence are that there must be some form of abusive provable by way of evidence in a court of law, the act must be conducted by a family member and it must be committed within the walls of the domestic household. Herein lies the issue with regards to these types of cases. Numerous cases of domestic violence are psychological, emotional or non-physical and in these situations, to prove before a court of law that one has abused another is extremely difficult[2] and prosecution of abusers becomes unlikely.
A number total of 89,097 cases related to crimes against women was registered across India in 2018. These figures indicate that there has not been any improvement when compared to the number of cases – 86,001 registered under this head in 2017. The crime rate per lakh women population is 58.8 in 2018 in comparison to 57.9 in 2017. This means that in the year 2018, domestic violence against women is the crime most committed under the category of crimes against women, surpassing rape, sexual harassment, acid throwing etc.[3]
The theme for this paper was selected on the basis of these figures, wherein the author strives to create a solution to address the sheer volume of domestic violence cases before courts in India and to provide for an alternative solution for victims of this crime vis-à-vis Mediation. Mediation is a form of Alternate Dispute Resolution wherein legal disputes may be settled by the interaction of the two parties in the presence of an active third party – the mediator.[4] This form of dispute resolution is generally utilised in civil or contractual cases, but may also be used to resolve matters like domestic violence.
Mediation is a method wherein the interests of both parties are considered and the main goal to be achieved is the mutual and amicable settlement between the parties. Through the active participation of the parties themselves, solutions are brought about that may not have been possible in a court of law. Both parties compromise and arrive at a settlement which they may be satisfied with.[5] This is especially relevant in domestic violence cases wherein a child is involved and the main goal of settlement is to keep the best interest of the child at the forefront and to ensure the mental health of the child is not affected by the matter.[6] This paper will address various aspects of the theme such as the identification of interests, the various pros and cons attached to the idea of mediation in domestic violence cases and the solutions proposed for the active use of mediation in domestic violence cases.
Scope of the Issue:
The identification of interests is key in the discussion of whether mediation may be used in domestic violence cases. On one hand, the first interest of trying to keep a family together for the best interest of the child and on the other hand, the second interest shared by the society in matters of criminal nature.
- Identification of the First Interest:
The use of mediation in domestic violence related cases is a matter of conflict due to the fact that one set of people believe that mediation may be utilised in domestic violence cases just like in any other kind of dispute but another set of people believe that there is no place for mediation in domestic violence cases. The mediation process in a dispute has certain advantages like confidentiality, informal procedures, flexibility, and its ability to save and sustain relationships.[7] It can be stated that mediation should be used to settle cases involving domestic violence as it may potentially save the family relationships, protect the children from the emotional repercussions that they might suffer due to long drawn court litigation. Mediation’s voluntary nature preserves the right of self-determination and, therefore, parties have full autonomy to accept or reject the outcome[8] and so mediation can be a way of dealing with domestic violence cases to satisfy a family interest i.e. the first interest. The first interest is to protect the family relationship and children from the repercussions of a family dispute.
This first interest also encapsulates the concept of speedy remedy or speedy redressal of grievances. Section 8 of the Arbitration and Conciliation Act of 1996 governs the use of mediation and other forms of dispute resolution in Indian, wherein it is stated that a judicial authority can refer a matter to arbitration or other forms of dispute resolution.[9] In addition to this, section 89 of the Civil Procedure Code also states that alternate dispute resolution mechanisms may be adopted to resolve disputes between parties.[10] The main objective behind these provisions is to clear the backlog of cases and provide a faster option to the litigants to resolve their disputes.[11]
Thus, the first interest is identified to be the protection of family relationship, the interest of the child in the relationship and the relaxation of the burden upon courts to resolve all disputes.
- Identification of Second Interest:
The reason as to why many people would oppose the idea of mediation in domestic violence cases is because domestic violence involves a criminal act and, therefore, the general belief of society is that the accused must be punished for his criminal actions. Moreover, giving a criminal punishment, such as imprisonment or fine, acts as deterrence for other citizens and, therefore, could possibly reduce the rate of domestic violence cases in the community.[12] Hence, the other interest associated with domestic violence cases is one where the abuser is made to pay for his deeds and the standards of acceptable and unacceptable behaviour are set for society to follow. This societal interest in the punishment of offenders is the second interest.
The Karnataka High Court delivered a judgement in 2015 wherein a criminal complaint made by a female against her husband was quashed by the court due to the fact that the two parties were involved in a mediation process and had reached an amicable settlement.[13] It can be argued that in the above court case, the judgement delivered by the court will result in the dilution of the fear of being convicted in domestic violence cases. The court has overlooked the fact that it is allowing the accused to go freely without making him suffer for his criminal act. While allowing the quashing of the criminal proceeding after the matter has been settled between the parties under the Section 89 of the CPC, the Court ignored the history of Section 498A of IPC, which deals with the aspect of cruelty against women and is a key factor in the decision of domestic violence cases.[14] This is the only section in the Indian Penal Code, 1860 which protects women from domestic violence by recognizing it as a crime. Domestic Violence under Section 498A is a cognizable, non-bailable[15] and non-compoundable[16] emphasising the fact that is a very serious offence.
Thus, the second interest is identified to be the interest of the society in wanting a criminal to be punished so as to deter people from committing similar crimes in the future.
The Indian Scenario on Mediating Domestic Violence Cases:
The use of mediation in domestic violence cases is questionable due to the nature of the society that prevails in India. The Patriarchal nature of the society in India is the main factor in enacting numerous laws for the protection and benefit of women. If Courts were to indulge more in the practise of referring domestic violence cases to mediation, then the very purpose of enacting laws like section 498A of the Indian Penal Code is diluted. The possibility of an abuser going unpunished for an offence by simply paying a settlement amount is the crucial drawback of the mediation process in criminal cases.
In general, only disputes of a civil nature can be mediated and criminal disputes, especially those which are non-compoundable, cannot be mediated. However, Indian courts have taken a different view in certain judgements wherein they state that pre-litigation mediation should be encouraged in matrimonial disputes if they are fit for mediation.[17] In the B.S. Joshi case, the Supreme Court of India held that the High Court, while exercising it inherent power under Section 482 of the Criminal Procedure Code, can quash a criminal proceeding in a non-compoundable offence if the parties have amicably settled their differences. The Supreme Court while hearing the appeal felt that it is the duty of the Court to encourage genuine settlements of matrimonial disputes. The Court was aware of the fact that the Section 498A of the Indian Penal Code was introduced to prevent the torture of woman by her husband or by relatives of her husband but the Court stated that the hyper-technical view would be counterproductive and would act against the interest of women and against the object for which it was added.[18]
The Supreme Court of India has also observed that if parties were to be sent to mediation, the bitterness between spouses may not escalate to the stage it may through litigation. The court also stated that nearly 10 to 15% of disputes get settled amicably through various mediation centres. However, the Court was cautious in the use of mediation for domestic violence cases and provided certain conditions for the use of the same. In order to make sure that mediation is conducted fairly in matrimonial disputes, the Court stated a few directions to be followed such as taking consent of parties before referring them to mediation, setting reasonable time limit for court-referred mediation so that the resolution of dispute is not delayed, complaints under Section 498A of IPC should be referred to mediation only when there exists an element of settlement.[19] Thus, the Supreme Court has taken a pro-mediation approach but provided few guidelines in order to make sure that the mediation process is not misused by the erring spouse.
There are numerous judgements delivered by the Supreme Court of India wherein a pro-mediation stance has been taken. The court has stated that while matters may be referred to mediation, the court still maintains the jurisdiction over the matter and may record the settlement before disposal[20]
Thus, the challenge of mediation in domestic violence cases boils down to the balancing of the interests. Greater importance to the first interest will result in a speedier redressal for parties and a lesser burden on courts, but may result in criminals being unpunished and a resultant rise in the rate of domestic violence crimes committed. Greater importance to the second interest will result in a deterrent effect on society and possibly the reduction of cases relating to domestic violence, but rendering justice will become an arduous process and may affect children involved in a negative manner.
Challenges and Solutions:
After observing the challenges behind mediating a domestic violence matter, if one was to state that courts themselves should decide cases, it cannot be considered an optimal solution. One cannot forget about the advantages that mediation offers and hence, it becomes imperative to try and find a way to incorporate mediation in domestic violence cases in such a way that while on one hand mediation is encouraged, on the other, the crime does not go unpunished and thereby does not set a bad example in society. We shall discuss the possibility of the same under two categories- when the victim is an adult and when the victim is a minor.
- Mediation in domestic violence cases involving an adult:
The main obstacle in such cases, which is also the main criticism of the K. Srinivas case[21], is the fact that if the parties arrive at a settlement through mediation, the criminal proceedings can be quashed against the abuser at the option of the victim. This sets a bad example in the society as well as in the mind of the offender as they tend to become less afraid of the consequences of their criminal acts while committing them due to being aware that they can get away without being punished by way of mediating. This could in fact lead to a further increase in domestic violence in the society as the ones who refrain from committing the same due to the threat of being punished may also now start indulging in the same due to the knowledge that the above threat can be eliminated.
Further, allowing the abuser/ abusers to go unpunished for their crimes at the option of the victim also strikes at the basic foundation of criminal jurisprudence, especially one that a crime is committed not only against the victim but also against the society as a whole and hence much be punished with severe sanctions and the action is also usually brought against the offender by the State[22]. Domestic violence cases fall within the ambit of those few cases which need to be instituted against the offender by the victim due to the nature of the offence, which usually happens within the privacy of households and further also because it not usually incident specific[23].
While this is a legitimate issue and the abuser must be punished for the crime, adopting a strict approach in this regard may result in no settlements happening via mediation due to the lack of incentive to settle the same from the side of the abuser since he is ultimately going to be punished, irrespective of whether a settlement is arrived at or not. This problem is similar to that of economics wherein the lack of incentive to invest due to the subsequent lack of reward for the same leads to underproduction.[24] Hence, some sort of incentive must be provided to the abuser to settle.
Therefore, a middle path must be adopted. While mediation and subsequent settlement of domestic violence cases must be encouraged, and on successful completion of the same, the victim must not be allowed to apply for quashing the criminal proceeding, at least some amount of reduction in the sentence of the offender must be granted depending on the severity of the violence, at the discretion of the court. This will help achieve both the objectives of mediation in such cases, that is, incentivising the abuser to try and arrive at a settlement and make complete use of the mediation process as well as ensuring that no crime goes unpunished and thereby ensuring that no bad example is set in the society.
Such an approach draws upon the concept of plea bargaining which is extensively practised in the United States of America. Plea bargaining refers to the “negotiation of an agreement between the prosecutor and the defendant whereby the defendant is permitted to plead guilty to a reduced prosecution charge.”[25] In other words, it is the practice of negotiating an agreement between the and the defence wherein the prosecution gives you certain charging or sentencing considerations[26] in terms of leniency, dismissal or recommendations, in exchange for a guilty plea by the defendant. Even though, India does not recognise plea bargaining in our legal system, the concept of granting a lesser sentence in exchange for an admission of crime of the criminal can be modified and applied to domestic violence cases in which a settlement has been arrived at through the cooperation of the abuser by way of the mediation process. Drawing upon the same idea, it is suggested that when the abuser agrees and a mutual settlement is arrived at through mediation, the court may take the same into consideration and grant a more lenient sentence to the abuser. Guidelines for the same must be formulated as well in order to reduce arbitrariness.
Another major drawback of mediation in domestic violence cases is with relation to the chances of the victim being influenced or pressurised in arriving at an agreement which goes against the primary goal of mediation which is to empower parties.[27] It is a well-known fact that one of the major causes for violence in the domestic setup is because the abuser has more control (whether physical, economic or emotional) over the victim[28] and a power imbalance exists[29] between the two parties especially in cases where the victim is a part of vulnerable groups, including women, minors and those people that are economically disadvantaged[30]. There is a high possibility of the same pouring over to the mediation proceedings. Further, pressure from family, friends and societal criticism in general may force the victim to accept a settlement with terms that she does not agree with. It must also be borne in mind that the elements of trust, good faith and transparency which are critical, foundational requirements for mediation, are also lacking in the case of domestic violence.[31] Victims of such violence find it almost close to impossible to undergo alternative dispute resolution processes on a level equal to that of the abuser due to the very nature of such offences wherein the victims are invariably left feeling vulnerable and helpless post the abuse whereas on the other hand, the abuser experiences a sense of dominance and power.
Mediation should not become a manipulation tool. It must be borne in mind that the aim of mediation is not merely reconciliation but also to satisfy the psychological needs of the victim and enable them to be able to let go of the trauma and try and forgive the abuser.
It is the responsibility of the State to ensure that a neutral and well-trained mediator takes charge of the mediation proceedings, especially keeping in mind the fact that in cases of domestic violence, the victims are unwilling to report about the abuse and if they report the same, then it usually means that they don’t see another alternative to remedy the situation. If the same is not ensured, it would result in the re-privatisation of domestic violence.
Further, an effective mediation process can only take place if the mediator is able to successfully restore the relative balance between the parties. Therefore, training of the mediator becomes an essential prerequisite to a successful mediation. It is also important for the mediator to be familiarised with the reasons that lead to domestic violence, the cycle of violence as well as the psychological state of parties. Keeping all the above-mentioned factors in mind, it is clear that the role of the mediator becomes heightened in importance in domestic violence cases as mediation in such cases could result in suppression of the weaker party and thereby the delivery of unfair results, if the same is conducted without proper regulations and supervision. It is therefore, suggested that certain standards of practice for mediation in domestic violence cases must be developed and only mediators who undergo training and strictly fulfil the required criteria should be allowed to play the role of a mediator in a case of domestic violence.
- Mediation in Cases involving domestic violence against a child:
The admissibility of mediation in specific situations of a child being subjected to domestic violence must be dealt with separately due to the higher level of risk involved in the same. If the victim is a minor, then such a victim’s rights are exercised by his or her legal representative or guardian rather than the victim themselves. The main issue arises when the legal guardian or representative themselves is the abuser. In such cases, the court has to appoint a guardian to engage in mediation on behalf of the child. As previously mentioned, reconciliation is not the sole aim of mediation. Being able to forgive the abuser for the treatment meted out is an important aspect as well and since forgiveness is a personal choice and one cannot forgive on behalf of another, this aim remains largely unfulfilled in such cases as forgiveness with the complete knowledge of the surrounding circumstances is not possibly in its truest sense in such cases due to the minority of the victim.[32] The victim, that is, the child, is largely unable to understand the reason as well as process of mediation in most cases. Further, it must also be kept in mind that in most such cases, the child is also emotionally dependant on his or her legal representative who turns out to be the abuser too and the same results in an imbalance due to greater dominance of the abuser, thereby increasing the chances of a forced settlement. Even though some people are of the opinion that community support, moral support, etc play a role in the position of the victim child in the mediation process, the extent and the level to which they strengthen the same is highly debatable.
Hence, keeping in mind the above-mentioned reasons and the gravity of the situation which arises due to the minority of the child, mediation, generally in such cases, is neither advisable nor the optimal way out. However, mediation concerning such acts that wrongs a child may be possible once the child attains adulthood.
Conclusion:
The concept of mediation and parties resorting to mediation is on an upwards curve in recent times and it is due to the effectiveness and pure simplicity in the process. This upward trend brings mediation into the lime light in the legal field and begs the question – how far can the utility of mediation be stretched? Traditionally, mediation has been used to resolve contractual or civil issues due to the fact that they involve individual interest, there is a specific amount of compensation or remuneration to be negotiated upon and so parties have the room to be flexible and identify creative solutions for mutual benefit.
The resolution of criminal conflicts by way of mediation proposes challenges as criminal acts do not only constitute individual interest, but the interest of society due to the nature of criminal activity. Criminal acts also have the element of criminal punishment such as imprisonment. One cannot negotiate the period of imprisonment in a mediation process simply because each criminal act is associated with a specific period of imprisonment based on the severity of the crime, and it is the prerogative of the courts to sentence criminals to these periods of imprisonment.
The balance of interests of the parties, the courts and the society can be met with the proposed solution wherein if the case has to do with domestic violence against an adult member of the family, it may be referred to mediation by the court of law so as to settle the dispute and while doing so, the court may also provide for a lesser period of punishment. Through this proposal, the victim is satisfied as they will get speedy legal recourse, the abuser is benefitted due to a reduced imprisonment sentence, the burden on the court to decide the matter entirely is lessened, the societal interest of punishing the abuser is met and children involved in the matter will not have to suffer through a lengthy legal battle.
Therefore, while this proposal may not be effective in the situation of domestic violence against a child and a reduced period of punishment may not be sufficient to deter others from committing the same crime, it is the most logical and effective method by which every person or entity involved in a domestic violence-related incident is benefitted in some form.
[1] Black’s Law Dictionary (10th ed. 2014).
[2] Jane H. Aiken & Jane C. Murphy, Evidence Issues in Domestic Violence Civil Cases, Georgetown Law Faculty Publications, 34 Fam. L. Q. 43-62 (2000).
[3] National Crime Record Bureau, Crimes in India Report (2018).
[4] Black’s Law Dictionary (10th ed. 2014).
[5] Kazi Abdur Rahman, Mediation and Mediator Skills: A Critical Appraisal (Feb 1st 2012), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3231684.
[6] The Court quashed the criminal proceedings initiated by the wife due to the amicable settlement reached by the affected parties and to protect the interest of the girl child. Mohammed Mushtaq Ahmad and Ors. v. State by Kengeri Police Station and Ors., 2015 (3) AKR 363.
[7] Kazi Abdur Rahman, Mediation and Mediator Skills: A Critical Appraisal (Feb 1st 2012), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3231684.
[8] Kazi Abdur Rahman, Mediation and Mediator Skills: A Critical Appraisal (Feb 1st 2012), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3231684.
[9] The Arbitration and Conciliation Act, Section 8 (1996).
[10] Code of Civil Procedure, Section 89 (1908).
[11] Rituparna Padhy, Analysing Section 89 of CPC, Law Times Journal (Sep. 7th 2019), http://lawtimesjournal.in/analysing-section-89-of-cpc/.
[12] Isaac Ehrlich, The Deterrent Effect of Criminal Law Enforcement, The Journal of Legal Studies, Vol. 1, No. 2 (Jun. 1972), Pg. 259 – 276.
[13] Mohammed Mushtaq Ahmad and Ors. v. State by Kengeri Police Station and Ors. 2015(3) AKR 363.
[14] The Indian Penal Code, Section 498A (1860).
[15] Code of Civil Procedure, First Schedule (1908).
[16] Code of Civil Procedure, Section 320 (1908); Ramgopal and Anr. v. State of M.P. and Anr, (2010) 13 SCC 540.
[17] K. Srinivas Rao v. D.A. Deepa, Civil Appeal No. 1794 of 2013, Supreme Court of India.
[18] B.S. Joshi & Ors. v. State of Haryana & Anr, AIR (2003) SC 1386.
[19] K. Srinivas Rao v. D.A. Deepa, Civil Appeal No. 1794 of 2013, Supreme Court of India.
[20] Afcons Infrastructure Ltd. v. Varkey Construction Co. Pvt. Ltd. 2010 (8) SCC 24.
[21] K. Srinivas Rao v. D.A. Deepa, Civil Appeal No. 1794 of 2013, Supreme Court of India.
[22] Seymour F.; Force Harris, M. F. Principles of Criminal Law (1880).
[23] Mary Ann Dutton & Catherine L. Waltz, Domestic Violence, 17 Fam. Advoc. 14 (1995).
[24] William H. Oakland, Public Goods, Perfect Competition, and Underproduction, Journal of Political Economy, Vol. 82, No. 5 (Sept. – Oct. 1974), Pg. 927- 939.
[25] Black’s Law Dictionary (10th ed. 2014).
[26] Plea Bargaining, 9 Jailhouse Law, Manual 1 (2011).
[27] Kimberlee Kovach, Mediation: Principles and Practice 39 (3d ed. 2004) {C No.12 in Murphy Jane art}.
[28] Kristy Candela, Protecting the Invisible Victim: Incorporating Coercive Control in Domestic Violence Statutes, 54 Fam. Ct. Rev. 112 (2016).
[29] Dianna R. Stallone, Decriminalization of Violence in the Home: Mediation in Wife Battering Cases, 2 Law & Ineq. 493 (1984).
[30] Jane C. Murphy & Robert Rubinson, Domestic Violence and Mediation: Responding to the Challenges of Crafting Effective Screens, 39 Fam. L.Q. 53 (2005).
[31] Olga Sitarz, Dominika Bek & Anna Jawarska-Wieloch, Mediation and Domestic Violence: Theoritical Reflection n the Polish Background, International Journal of Criminal Justice Sciences, Vol. 13 (2), July-December 2018, Pg. 356 – 369.
[32] Olga Sitarz, Dominika Bek & Anna Jawarska-Wieloch, Mediation and Domestic Violence: Theoritical Reflection n the Polish Background, International Journal of Criminal Justice Sciences, Vol. 13 (2), July-December 2018, Pg. 356 – 369.
