Delhi High Court cites Gita, Qur'an, Bible on role of mediation but says POCSO cases cannot be compromised

The Delhi High Court recently invoked Ramayana, Mahabharata, Bhagavad Gita, Bible, Qur’an and Kautilya’s Arthashastra to emphasise on the importance of mediation [Rajeev Dagar v State & Ors].

Justice Swarana Kanta Sharma cited the verses from the religious texts to state that they have stressed on mediation and it is only when these texts are understood in detail and not treated merely as religious texts that the mediation process will have the potential to give finality to disputes.

"This Court thus, opines that it is not on the basis of the British or other foreign Jurisprudence alone but on the basis of unplundered wealth of ancient Indian Judicial and mediation jurisprudence which is found in our old texts including Ramayana (रामायण), Mahabharata (महाभारत), Bhagavad Gita (श्रीमद्भगवद्गीता), when read and understood in detail in context of the messages conveyed in certain chapters, subject to their true interpretation and understanding without being referred to as religious texts alone," the Court said.

The Court also cited verses from Qur'an, Bible and Arthashastra to underline how mediation was used as a tool to settle disputes.

“As per the Holy Bible, Matthew 5:9 urges Christians to use useful means to resolve disputes amicably and that those who are peacemakers shall be called sons of God. Matthew 18:15-17 states that in case of a deadlock, the parties should contact a third neutral party to get their issue resolved. Even in Islam, the Holy Qur'an, the Sunna, the Ijma, and the Qiyas support peaceful conflict settlement within the Islamic community, between Islamic and non-Islamic communities, and between two or more non-Muslim communities.... Arthashastra (अथथशास्त्र) by Kautilya and the principles enumerated by the judges, commentaries, lectures and mediation training on mediation process will have the potential to give finality to disputes between the parties,” the judgment stated.

The Court, however, made it clear that cases under the Protection of Children from Sexual Offences Act (POCSO Act) cannot be referred to mediation and settled or compromised.

The Court made the observations while dealing with a plea filed by a man to set aside a trial court order that had closed a complaint filed under Section 7 of the POCSO Act in the year 2015.

Section 7 punishes a person who “with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault”.

The complaint was filed by the father of two children (one boy, one girl) alleging that they were inappropriately touched by their uncle (mother’s brother).

The trial court had referred the disputes between the complainant man and his wife including the registration of POCSO complaint, to mediation and then closed the complaint based on the settlement achieved by the two sides.

However, the complainant-man later approached the High Court against the trial court order arguing that he was tricked into withdrawing the complaint by his wife and brother-in-law.

After considering the case, Justice Sharma said that the offences under POCSO Act cannot be referred to mediation, settled or compromised and no monetary payment can result in resolution of these cases.

She observed that any attempt to mediate or compromise the cases under POCSO Act undermines the principles of justice and rights of victims and they must not be entertained under any circumstances by a mediator.

However, in the present case, the Court refused to revive the complaint observing that nine years have passed since the trial court order and facts revealed that the children were being used by the parents to settle their personal scores.

“Therefore, in view of the detailed discussion made in the preceding paragraphs, this Court is not inclined to allow the reliefs sought in this petition i.e. quashing of order dated 08.04.2015 and restoration/revival of complaint which was filed under POCSO Act before the learned Special Court when the victims themselves have not prayed for the same, and thus, the prayer in this petition stands rejected," the Court ordered while rejecting the father's plea.  

Advocates Rajat Wadhwa, Dhreti Bhatia, Gurpreet Singh, Nikhil Mehta and Himanshu Nailwal appeared for petitioner Rajeev Dagar.

Additional Standing Counsel (ASC) Rupali Badhopadhya appeared for the State.

Advocates Gitesh Aneja and Lakshay Kumar represented the respondent mother and her brother.

[Read Judgment]