Introduction:
Alongside the increasing danger of COVID transmission, another public health crisis cropped up: data suggests a substantial rise in domestic violence cases all around the globe. Domestic violence is flourishing due to the conditions created by the pandemic.
The statistics are eye-opening. The World Health Organization estimates that over one in three women worldwide have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime, with that vast majority of that violence being perpetrated by an intimate partner.[1]
Women have constantly been subjected to abuse and been victims of social evils such as sati, child marriage, etc. India has been a patriarchal society for several centuries. Since time immemorial women have been looked down up and have been mistreated. Domestic violence is one of the biggest displays of women’s persecution.
In today’s day, when the world is all ready to tackle the grave impact of COVID, the substantial increase in domestic violence has brought up the question of women’s safety.
We claim that India has come a long way from ancient times and women are now equal to men. However, when it comes to data, the national commission for women has registered 587 cases of domestic violence between 23 March and 16 April 2020[2]. It is also to be noted that these are only the number of cases being reported to the NCW. Most such cases are reported to the police primarily. The protection of women’s dignity is still a challenge imposed on the Indian society.
The Indian judiciary is overburdened by the number of pending cases presently. As of December 2016, the number of pending cases in India was as high as 2.74 crores[3]. In 2017 the number increased to 3.4 crores[4] out of which were 7 lakhs[5] pending divorce cases at the end of December 2017.
Alternate Dispute Resolution (ADR)
This pendency and tremendous delay asserts the need for alternate dispute resolution in India. In a developing country like India, there is a growing need for expeditious resolution of disputes to lessen the burden of the judiciary.
ADR includes means of dispute resolution that bring about an agreement among disagreeing parties without having to resolve to tedious litigations. ADR is generally of 4 types; arbitration, mediation, resolution, conciliation.
Advantages of ADR
ADR has several advantages that make it a more desirable choice as opposed to litigation. Some of those advantages are:
1. Cost: Mediation processes generally are expeditious and resolve matters within hours, whereas a court litigation process takes months or years to resolve. Taking less time automatically means spending less amount of money on court and attorney fees.
2. Confidentiality: While court hearings are a matter of public record, mediation and other ADRs remain confidential. The legal system of a country cannot force a mediator to testify in court as to the matter of mediation. Complete confidentiality is maintained in most ADR cases.
3. Mutuality: Parties involved in an ADR typically are ready to work with a mutual consensus and come to an agreement. The parties tend to be more amenable and understanding. The parties are more likely to come to a mutual resolution as opposed to a court case.
These advantages work in favor of parties who seek mediation of matrimonial affairs. Moreover, the process involved in mediation tends to achieve timely justice.
In the case of Mohd. Mushtaq Ahmed vs. State[6], the wife had filed a petition for divorce along with an FIR under section 498A of the Indian Penal Code against her husband after altercations happened between the couple after the birth of a female child. The Karnataka High Court gave direction for the couple to resolve the matter by mediation under Section 89 of the Civil Procedure Code. Subsequently, the matter was amicably settled through the process of mediation as a result of which the wife decided to quash the FIR against her husband.
In Gurudath K. v. State of Karnataka[7], the facts are identical to the aforementioned case. In the case, the court stated that even if the offenses are non-compoundable if the parties have mutually and amicably settled the matrimonial dispute, and if the court is satisfied as to the same, section 320 of the Criminal Procedure Code would not stand in the way of having the right to quash an FIR in regards to such offenses.
Conflict
The Indian judiciary has time and again advocated the resolution through ADR mechanisms. This has brought about a lot of criticism from all over the country. The critics claim that this enables the abuser or the criminal to be set free since there is no punishment imposed on them. The only advantage of ADR in matrimonial matters is the confidentiality and the speedy process. However, the question that then arises is if the speedy remedy is worth letting a criminal loose on the streets. It is indeed a threat to society at large in addition to being a blessing for the accused that gets away scot-free.
In the case of B.S. Krishna Murthy & Anr vs B.S. Nagaraj & Co[8], Justice Markanday Katju said that: “In our opinion, the lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships like family, businesses are involved.”
Conclusion
The need of the hour is to adopt ADR to reduce the burden of the courts. However, this needs to be done judiciously and meticulously. Strict guidelines need to be established and referred to. Each case is different and should be treated as such. The magnitude and gravity of each domestic violence case should be judged individually and not based on any precedent.
References:
[1] http://www.who.int/news-room/fact-sheets/detail/violence-against-women
[2] https://economictimes.indiatimes.com/news/politics-and-nation/india-witnesses-steep-rise-in-crime-against-women-amid-lockdown-587-complaints-received-ncw/articleshow/75201412.cms
[3] https://www.ndtv.com/india-news/pending-cases-fall-in-supreme-court-high-courts-but-rise-in-lower-courts-1757378
[4] https://www.financialexpress.com/india-news/pending-case-in-judiciary-82-of-delays-due-to-lawyers-much-less-the-judges-says-study/612552/
[5] https://www.dnaindia.com/india/report-55000-couples-waiting-for-divorce-in-india-1400514
[6] (2015) 3 AIR Kant R 363.
[7] Criminal Petition No. 7258 of 2014
[8] S.L.P. Civil) No(s).2896 OF 2010
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