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Counseling

Posted on October 15, 2025 by user

Introduction
Counseling — the organised provision of professional advice, psychological support and behavioural intervention — is an increasingly prominent remedial and procedural tool in Indian law. It functions at multiple nodes of the justice system: as an instrument of rehabilitation (juvenile, drug and mental-health cases), as a means of conflict-resolution (family law and civil mediation), and as a victim-support mechanism (domestic violence, sexual offences, POCSO). For practitioners, appreciation of counseling is not merely theoretical: it shapes orders the court can pass, the evidence a lawyer must marshal, the ancillary agencies to involve, and the safeguards (confidentiality, consent and professional qualification) that must be insisted upon.

Core Legal Framework
The Indian statute-book does not have a single, uniform definition of “counseling.” Instead, the term appears as a statutory function, remedial option or administrative duty across multiple enactments. The primary provisions practitioners must know are:

  • Code of Civil Procedure, 1908 — Section 89: empowers judicial referral of civil disputes to alternative dispute resolution (mediation/conciliation) for settlement; counseling is often part of the conciliation/mediation process facilitated under this provision.
  • Family Courts Act, 1984 — Section 7: empowers family courts to secure the settlement of disputes by efforts which include counseling, conciliation and mediation; the Act envisages active judicial facilitation of reconciliation.
  • Narcotic Drugs and Psychotropic Substances Act, 1985 — Section 64A: permits courts to release an addict under supervision for treatment and rehabilitation, which in practice involves structured counseling and de-addiction programmes.
  • Protection of Women from Domestic Violence Act, 2005 — Section 12 (Duties of Protection Officer) and Section 18 (Power to provide assistance) – the apparatus created by the Act (Protection Officers, service providers and shelter homes) is charged with facilitating counseling and support for survivors.
  • Mental Healthcare Act, 2017 — Part II and Section 18 (Right to access mental healthcare services) and relevant provisions that define duties of mental health professionals and standards of care; counseling is a specified component of mental health services.
  • Juvenile Justice (Care and Protection of Children) Act, 2015 — (Preamble and provisions under Chapters relating to rehabilitation and social reintegration): the Act mandates care, protection and social reintegration, and juvenile justice boards and rehabilitation homes provide counseling as part of social investigation and after-care.
  • Protection of Children from Sexual Offences Act, 2012 (POCSO) — the statute and associated rules require child-friendly procedures, assistance and support services, including counseling for victims.
  • Code of Criminal Procedure, 1973 — while not prescribing “counseling” as such, procedural mechanisms (probation, pre-sentence reports, and diversionary processes) often incorporate counseling as a condition of orders passed under CrPC provisions (e.g., probation orders under Section 558A of the CrPC as read with Probation of Offenders Act principles).

Practical Application and Nuances
How counseling functions in the daily work of courts and litigators depends on context. Below are the core practical scenarios and the steps lawyers must anticipate.

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  1. Family and Matrimonial Matters (divorce, domestic violence, child custody)
  2. How it is used: Courts routinely refer parties for counseling before deciding matrimonial reliefs (maintenance, restitution of conjugal rights) or custody disputes. Family Courts Act and CPC Section 89 referrals permit formal mediation/counseling sessions; Magistrates and family courts may also require parties to attend court-appointed or court-recognised counselors.
  3. Practical steps for counsel:
  4. Move an application under Order X Rule 1A CPC/Section 89 CPC (where appropriate) or make a formal oral/written request to the family court for referral to a court panel counselor or recognised agency.
  5. Supply background documents: marriage certificate, medical/psychiatric reports (if any), police complaints, affidavits describing the dispute and child welfare considerations.
  6. Ensure the counselor is qualified (clinical psychologist/registered counselor) and agree on confidentiality protocols and reporting formats.
  7. Insist on limited, structured reports to the court: attendance certificate, issues covered and whether reconciliation is feasible — avoid disclosure of therapy content unless party waives privilege.
  8. Evidence and proof: Attendance certificates, counseling intake assessment, and a summary rehabilitation/reconciliation report signed by the counselor. If the report contains admission of facts relevant to the dispute, advise client about consequences.

  9. Juvenile Justice (offending and care & protection)

  10. How it is used: Juvenile Justice Boards, Child Welfare Committees and observation homes include counseling in social investigation reports (SIRs), rehabilitation plans and after-care. Counseling is a statutory component of reintegration and adoption of non-institutional measures.
  11. Practical steps:
  12. For accused juveniles, seek a social investigation report early (prepared by Child Welfare Committee/Probation Officer) and ask court to order therapeutic counseling as part of the rehabilitation plan.
  13. For children in need of care, ensure interim shelter homes provide counseling, educational modules and family tracing before restoration.
  14. Evidence: SIR, rehabilitation plan, certificates from the counselor/rehabilitation home, attendance logs and progress notes (with care on confidentiality for minors).

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  15. Drug-related Offences and De-addiction

  16. How it is used: Courts use NDPS Section 64A and judicial discretion to direct treatment and counseling as part of bail, admonition or as an alternative to incarceration for addicts.
  17. Practical steps:
  18. Argue for diversion under NDPS S.64A (if the case and facts permit) and produce a treatment-cum-counseling plan from a recognised de-addiction centre. Provide antecedents, drug dependency assessments (e.g., ISI or clinical psychiatric assessment) and family undertakings.
  19. Secure a monitoring regimen and periodic progress reports to be filed with the court.
  20. Evidence: Medical records, addiction assessment reports, admission certificates from de-addiction centres, periodic progress notes by credentialed psychiatrists/psychologists.

  21. Victim Support (domestic violence, sexual offences, POCSO)

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  22. How it is used: Counseling is treated as critical for victim recovery, preparation for testimony and protection of children. Courts direct NGOs, support services and mental health professionals to provide trauma-focused therapy.
  23. Practical steps:
  24. File an application for victim support services under PWDVA/POCSO; insist on a separate support person and a qualified counselor for the child/adult victim.
  25. Obtain the court’s direction for in-camera sessions, limited disclosure orders and sealed reports where sensitive mental-health material is at stake.
  26. Evidence: Counseling assessment and fitness-for-interview note; where admissible, expert evidence on trauma effects can be led through qualified professionals.

  27. Criminal Procedure: Probation, Pre-sentence and Diversion

  28. How it is used: As a condition of probation or release, courts often order counseling and periodic reporting from probation officers and counselors. This is also common in plea bargaining/diversion matters for minor offences.
  29. Practical steps:
  30. When negotiating mitigation, propose a structured counseling programme as a condition of probation — attach programme details, frequency and agency credentials.
  31. Obtain specific, enforceable terms in the order: duration, intervals for reporting, conditions of supervision, and consequences of non-compliance.
  32. Evidence: Probation officer’s report, counselor progress reports, certificates of completion.

Operational and evidentiary nuances common to all contexts
– Who conducts counseling: Prefer registered/credentialed professionals — psychiatrists, clinical psychologists, psychiatric social workers or counsellors registered with recognised state/national boards or institutions. Courts increasingly demand properly qualified personnel rather than ad-hoc volunteers.
– Content and privilege: Counseling sessions are person-centred and often confidential. Orders should limit the content of reports to attendance, broad assessment and fitness-for-court statements. Detailed therapy notes should remain privileged unless a statutory or judicially ordered disclosure is necessary. Counsel must negotiate confidentiality clauses or sealed filing of reports.
– Format of reports: Courts prefer concise formats — date of sessions, issues addressed, client’s cooperation, progress summary, and specific recommendations. Avoid detailed clinical narratives in public filings.
– Monitoring and enforcement: Insist on specific timelines (e.g., “weekly for six weeks, then monthly for six months”) and clear consequence clauses for default. When the court retains supervisory jurisdiction, periodically move for compliance reports and fresh orders if counselling is not delivered.
– Consent and capacity: For minors and persons with mental illness, legal guardianship and informed consent are essential. Under the Mental Healthcare Act, 2017, capacity assessment and rights must be respected.
– Safeguards against misuse: A counseling order should be structured so it does not coerce admissions or substitute for the interrogation process. Counsel must ensure the therapy mandate is rehabilitative, not punitive.

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Landmark Judgments
– Samar Ghosh v. Jaya Ghosh, (2007) 6 SCC 657 — The Supreme Court recognised that matrimonial disputes often allow scope for reconciliation and held that courts should actively explore the possibility of settlement. While the case primarily dealt with scope of grounds for divorce on cruelty, it is frequently cited to justify judicial referrals to counseling, conciliation and mediation in matrimonial litigation.
– Vishaka v. State of Rajasthan, (1997) 6 SCC 241 — The Court laid down guidelines to deal with sexual harassment at the workplace and emphasised state and institutional duties to create mechanisms for redressal, including counselling, complaint committees and preventive measures. Vishaka is relied upon in family, workplace and institutional contexts to insist on counselling and support services for victims.
– (Contextual note) Multiple High Court decisions have repeatedly reinforced the courtroom’s ability to direct counseling and rehabilitation — for instance, in juvenile and POCSO contexts — directing child-friendly counseling, use of NGOs and sealed records. Practitioners should monitor local High Court rulings that refine procedures for counseling reports, qualifications of counselors and confidentiality protocols in different jurisdictions.

Strategic Considerations for Practitioners
– When to seek a counseling order: Use counseling orders strategically — to secure early restoration (custody), to obtain bail/diversion in drug and petty offences, to build mitigation in sentencing, or to strengthen a rehabilitative settlement in matrimonial disputes.
– Drafting the order: Be specific. Orders should name the agency, identify the counselor (or list qualifying criteria), fix timelines, prescribe the report format (attendance, brief assessment, recommendation), and stipulate confidentiality and sealing of sensitive material.
– Selecting service providers: Maintain a vetted panel of NGOs, rehabilitation centres and accredited counsellors. Courts view recommendations from credible organisations more favourably than ad-hoc individuals.
– Managing client expectations and admissions risk: Warn clients that counseling may surface admissions or behavioural reports; where necessary, insist on “without prejudice” counseling sessions or limited-scope reports. Counseling should not be used as a tool to coerce confession; make submissions to the court if the purpose of counseling appears punitive.
– Evidence preservation and privilege: If therapy notes are likely to be critical, obtain express orders regarding the scope of disclosure. When representing victims, ensure reports are filed under seal and only summary findings are placed on record.
– Follow-up and compliance: Counsel should calendar compliance dates, obtain periodic progress reports proactively, and place those reports before the court as required. A lapse in compliance can be used adversely by the other side; conversely, compliance can be leveraged as mitigation.
– Expert testimony vs. counseling notes: Recognise that an expert retained to opine (e.g., psychiatrist in a criminal trial) will have to be produced under cross-examination if her report is relied upon. Distinguish between therapeutic counseling (confidential, client-centred) and forensic expert reports (admissible opinion intended for court).
– Confidentiality pitfalls: Do not allow generalized “counselor reports” to become a mechanism to introduce hearsay or inadmissible statements. Challenge any attempt to enlarge reports into a factual narrative used as substantive evidence without proper foundation.

Conclusion
Counseling in the Indian legal system is a flexible, multi-faceted device: a procedural tool for settlement, a statutory duty for protection officers and juvenile authorities, and a rehabilitative condition tethered to probation, diversion and de-addiction. For practitioners, mastery lies in three practical skills: (1) knowing the statutory and procedural hooks under which counseling may be ordered (CPC s.89, Family Courts Act, NDPS s.64A, PWDVA and JJ Act statutory schemes); (2) drafting narrow, enforceable, confidentiality-protective orders that specify agency, qualifications, timelines and reporting formats; and (3) securing and preserving qualified, documented proof of attendance and progress while safeguarding client privilege. Properly used, counseling converts transient judicial good intentions into enforceable, humane outcomes that protect victims, rehabilitate offenders and resolve family and social conflicts without sacrificing the procedural rights of parties.

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