Legislating on domestic violence

ASMITA BASU

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‘…violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.’

Declaration on the Elimination of Violence against Women, 1993

THE Protection of Women from Domestic Violence Act 2005 (PWDVA) was brought into force on 26 October 2006. This law was the result of a consistent campaign by the women’s movement which also played a lead role in its drafting. It has been just a little over a year since this law has been in effect, and it may be premature to draw conclusions on its effectiveness. Nevertheless, it is an appropriate moment to reflect on its rationale and objectives and examine the trends that foretell its future.

The first question that needs to be answered is: why was there a need for a separate law on domestic violence? Violence as a means to maintain unequal relationships has been resisted by the women’s movement, both nationally and internationally. The situs of this struggle in independent India has been primarily in the realm of law. Particular to the context of domestic violence, the struggle led to amendments in the criminal law that recognized cruelty within marriage as an offence (under Section 498A of the Indian Penal Code (IPC), promulgated statutes outlawing the practice of giving and taking of dowry (Dowry Prohibition Act, 1961), penalized dowry related harassment and recognized ‘dowry deaths’ as a separate offence (Section 304B, IPC).

In addition, civil and personal laws recognize ‘cruelty’ as a ground for divorce, in procedural laws on maintenance to avoid destitution (Section 125 of the Code of Criminal Procedure [CrPC]), and provide injunctive reliefs that may be availed of under civil procedural law. So were these provisions not adequate in aiding women facing violence in intimate relationships?

The practice of law indicated that it was not. First, most of the provisions can only be used by women who are in legally valid marriages. Second, an inherent limitation of criminal law, which was primarily used to address violence, is that it is geared towards prosecuting and convicting offenders and does not offer reliefs in terms of shelter, maintenance or compensation. The use of civil laws on the other hand involves protracted legal proceedings during the course of which a woman has little recourse or access to reliefs.

 

The most significant lacunae in the law was the non-recognition of the right to reside. In law, the right to reside accrues on those who either own the premises or in whose name the premises are leased. In the patriarchal context, in most cases, it is the male members of the family who are in possession of the premises, as it is their names that appear on the legal deeds. This means that it is easier to dispossess a dependent female, such as a wife or a daughter, than it is to evict a defaulting tenant. This omission played a significant role in increasing the vulnerability of women, who continued to remain in violent relationships for fear of dispossession and destitution.

In fact, it was observed in many cases that the first thing that happened to women filing complaints under criminal law was that they were thrown out of their own home. In the context of the lack of familial support or state-funded shelter or support services, many of such dispossessed women had to later agree to unfair settlements or take on protracted legal battles. This situation begged the question: how could a woman be expected to take on such massive challenges without basic entitlements and reliefs?

There is no doubt that issues arising from the non-recognition of a woman’s right to reside in her own home requires a resolution that goes beyond addressing violence. However, the need for a right to reside is of crucial import in situations of violence within intimate relationships. It is in this context that a separate law to protect women from domestic violence was contemplated and resulted in the enactment of the PWDVA. This law had to be framed in a manner that addressed the concerns of women seeking to avail of legal remedies.

The first consideration was whether a separate law would be gender specific, i.e. coverage would be confined to women, or gender neutral to cover all persons whether male or female in intimate relationships. The decision to formulate a gender specific law was based on an understanding that it is women who are disproportionately vulnerable to violence due to their position of inequality. The Constitution of India, under Article 15(3), allows the state to take special measures for women and children in furtherance of the goal of substantive equality. The demand for a gender specific law on domestic violence was a step towards this goal. This consideration does not ignore violence that men face in intimate relationships. For them the general laws of the land are available for seeking legal redress. A separate law for women is to correct historical disadvantages by creating means to facilitate a woman’s access to justice as a step to overcome inequalities.

 

The second consideration was to put in place a comprehensive definition of ‘domestic violence’ that captured a woman’s experience of violence in its diverse forms – physical, verbal, emotional, sexual and economic. The third important consideration was to bring within the ambit of law, categories of women facing violence in domestic relationships which were not marital in nature. This refers to daughters, sisters, widows, mothers and those who were in relationships in the nature of marriages though their relationships did not meet the requirements of a legally valid marriage.

The next consideration was the choice of the law – should it be a civil law or a criminal law? If it was to be a law aimed at providing reliefs then it would necessarily have to be civil in nature. However, it was important that protracted litigation be avoided and the reliefs be granted on an emergency basis to tackle the situation of violence. Hence, though the law is civil in nature, criminal procedure was to be applied in accessing reliefs as it is speedier. Complaints under this law, therefore, were to lie before the magistrate’s court.1 The magistrate, in turn, is given wide powers to ensure that cases are disposed off in an efficacious manner. Further, in order to ensure compliance with the orders of the court, the violation of orders was recognized as a criminal offence.

 

The outcome of these considerations is that PWDVA uses a judicious mix of civil and criminal law to protect women from domestic violence. This also marks a major paradigm shift in the kind of laws that have resulted from the demands of the women’s movement. Initially, demands were made for changes in the criminal law. The PWDVA, for the first time, puts in place a civil law that reflects the need for compensation and civil reliefs.

This law works in addition to other laws and does not make the existing pre 2005 legal regime redundant. Instead, it recognizes the need for reliefs to be granted as a basic minimum to provide women with a violence free space from which they can negotiate their future from a position of equality. Hence, the nature of the reliefs is emergency and temporary in nature; the permanent solution still remains in the realm of personal laws under which a woman would have to decide on whether or not to continue in the relationship. In doing so, the PWDVA marks a first but significant step towards achieving the goal of equality.

 

This leads the discussion to the issue of the nature of reliefs that would be provided within the rubric of the new law. Reliefs are granted in breach of rights that are recognized. Hence, the obvious right to be protected was the right to a violence-free home – how was this to be incorporated into the law? Other than providing for a definition of domestic violence, it became essential to recognize the right to reside and guard against illegal dispossession. It must be stated that this is not the first time that such a right has been recognized. The courts have, on occasion, interpreted a wife’s right to reside as being part of her right to maintenance. But still, it was necessary to provide for this right within a legislative framework. That has been done for the first time in the PWDVA.

The right to reside, however, has to be distinguished from property rights. All this law does, in Justice Chandru’s (High Court of Chennai) words, is to provide a ‘procedural safeguard’ (against dispossession) to women and not create any substantive right over the property. What this means is that a woman cannot be dispossessed from the household that she shares with the perpetrator of violence as a result of violence, and dispossession can only be pursuant to following the procedure set out in law. The right to reside, as recognized under the PWDVA, is irrespective of the pattern of ownership and is over the space where the woman and the perpetrator of violence have lived together in a domestic relationship.

Hence, in keeping with the objectives of the law and the rights recognized, the reliefs that a woman is entitled to are protection orders (or stop violence orders), residence orders (orders to prevent dispossession or allow for restoration in case the woman has already been thrown out), orders for monetary relief (to meet expenditure incurred due to the violence as well as maintenance), compensation orders (providing damages for the mental agony suffered) and temporary custody orders (to guard against any form of harassment over custody of children).

 

The next question to be answered was how a woman would access these reliefs. Going to court is a traumatic process for most people, women being no exception. In addition, there are other constraints such as stigma attached to litigating against one’s own family, the lack of wherewithal to access the courts and difficulties in getting orders enforced. It was essential to address these concerns by providing mechanisms within the law. The office of the ‘Protection Officer’ was therefore instituted under the law. The protection officer has a twofold duty. First, to assist the woman in accessing the court and other support services (such as legal aid, medical facilities, shelter homes, etc.) and second, to assist the court during the course of the proceedings and in the enforcement of orders.

In addition, the law allows for the registration of ‘service providers’. This provides recognition and legal protection to NGOs and other registered bodies that work on women’s rights or provide support to women facing violence. The provision for registration was put in place with the intention that protection officers will be able to work closely with such bodies and draw from their experience of providing support.

It was with these broad aims that the draft of the PWDVA was submitted to the state for its adoption. The work in the years to come will be to monitor whether the law is being implemented in the spirit of these objectives. After all, we are familiar with the oft-repeated refrain of non-implementation of laws. The Lawyers Collective has prepared the First Monitoring and Evaluation Report 2007 by collecting data on the manner in which the law is being implemented in the country by examining the infrastructure that has been put in place and orders passed under the act from across the country till the period ending on 31 June 2007. This report does not draw any conclusions but attempts to identify some of the trends that have emerged in the implementation of the law.2

 

In so far as the infrastructure is concerned, protection officers have been appointed in almost all states. Unfortunately, the appointments have been at the district level and in most cases, existing government officials have been designated as protection officers. The lack of training, infrastructure and support has led to overburdening. On the other hand, few states have begun the process of registering service providers. The state of Andhra Pradesh leads by example, where on the initiative taken by the police, a system of coordinated response has been put in place with the protection officers, police, legal aid authorities and service providers working in close collaboration in facilitating a woman’s access to reliefs.3

However, even in the context of such inadequacy, approximately 8000 cases have been filed under the law across the country and women have been successful in obtaining beneficial orders. It is notable that the highest number of cases has been filed in Rajasthan (3440) where no infrastructure has been put in place. This indicates that women are accessing the courts directly with the assistance of their lawyers. One of the reasons behind obtaining beneficial orders may be attributed to the time-line stipulation in the law which mandates that all applications be disposed off within 60 days.

 

There appears to be wide divergence in the kind of orders that are being granted by magistrates across the states. One commonality being that the major users of the law are married women and the most commonly granted orders are for maintenance. This is perhaps due to the fact that magistrates are accustomed to granting maintenance orders under Section 125 of the CrPC. It is, however, heartening to note that in a number of cases, widows and aged mothers, who hereinbefore were not covered, have been able to obtain favourable orders, particularly residence orders. There are also diverse trends in the nature of the orders being claimed by women, for instance Rajasthan women have mostly claimed orders for restoration into the shared household whereas in Kerala many women have sought orders directing the men to stay away. It is, however too early to ascribe reasons behind such divergent practices.

There are however, some issues to look out for in the years to come. First, there appears to be a high number of cases where the matter is referred for counselling with a view to effecting reconciliation which militates against the spirit of the law that views domestic violence as a breach of human rights and limits the role of counselling to putting an end to violence.4 Second, the right to reside has been severely limited due to the ruling of the Supreme Court in the Batra judgment which has recognized this right only over the property held by the husband. This judgment is not reflective of the reality of the Indian situation where many young couples live with the parent-in-law and not in independent premises.

 

Finally, the backlash against this law is apparent from many quarters. Men’s groups, emboldened by biased media reports, have launched vicious attacks on the law based on the nebulous and yet-to-be defined term ‘misuse’. These attacks have no basis in research or in law. On the contrary, the National Family Health Survey III, 2007, shows that while 37% of married women and 16% of never married women have experienced violence from husbands and close family members, only 2% of the abused women have ever sought institutional help.

The success of this law is dependent upon whether the society and policy-makers are able to identify domestic violence as a violation of human rights and not as a mere domestic dispute. The law sends out a powerful message on the standards of behaviour that will not be tolerated. However, the law remains only an instrument in bringing about social change; it will be the recognition of women as equal stakeholders that shall ultimately bring an end to violence.

 

Footnotes:

1. The PWDVA, under Section 26, provides that an application for reliefs may also be filed in any pending litigation that affects the rights of the woman. Hence applications may be filed in pending divorce proceedings or criminal proceedings under Section 498A of the IPC.

2. In this paper only some of the trends are being examined. In order to get an in-depth understanding of the study, see Lawyers Collective (WRI), ‘Staying Alive; First Monitoring and Evaluation Report, 2007 on the Protection of Women from Domestic Violence Act, 2005’, Print Graphics, New Delhi, 2007; also available at www.lawyerscollective.org

3. The Andhra Pradesh experience is a model example in terms of the workings of the infrastructure. However, the nature of reliefs that are being provided is still at the discretion of the courts.

4. There is scope for entering into settlements as a result of counselling. However, the rules stipulate that such settlements are to be attempted only at the option of the aggrieved woman.

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