December 10, 2009

‘Staying Alive’: An Audit of the Law against Domestic Violence

EARLIER THIS MONTH, the ‘Staying Alive: Third Monitoring and Evaluation Report 09’ on the Protection of Women from Domestic Violence Act, 2005 (PWDVA) was released in Delhi. The report tracks the implementation of the Act for the third year in a row and has become a way to document jurisprudential development of the law and create a monitoring system. Findings are shared at a national conference annually at which civil society organisations can question state officials and examine progress. This has inadvertently come to operate as a social audit. The naming and shaming as well as applauding and deriding of state departments in a public forum fosters accountability and drives state governments to take necessary action. For example, this year, Minister for Law and Justice M. Veerappa Moily recognised the need for fast-track courts to deal with cases of violence against women, easy availability of free legal aid and prioritisation of women’s cases in courts.

This annual report is authored by Lawyers Collective – Women’s Rights Initiative (LWCRI) and the International Centre for Research on Women (ICRW) in collaboration with the National Commission for Women (NCW) and supported by the UN Trust Fund to End Violence Against Women. Three states were studied this year: Delhi, Maharashtra and Rajasthan. A survey conducted in Delhi and Rajasthan with police and protection officers (POs) assessed their knowledge of the law, the practices they followed and attitudes towards the PWDVA and women. Data was gathered from the judiciary and women who had used the law were contacted to understand their experiences and expectations.

Questions centered around some of the key provisions of the PWDVA such as: categories of women the law protects (i.e. the applicant), who can the woman file the case against (i.e. the respondent), what acts qualify as domestic violence, what is the objective of counseling under the PWDVA, and the right to residence. For attitudinal assessment, several questions and statements were posed to gauge their attitude and gender bias, such as “Domestic Violence is a family affair”; “Women before filing a complaint of domestic violence should consider how that would affect their children”; “Women deserve to be beaten in certain situations”.

This assessment police exposed possible barriers or facilitators in women’s access to the law. It also tried to evaluate if the law is serving its normative function by transforming societal norms and internalising the unacceptability of violence against women in the private sphere.

The PWDVA in many ways is a path-breaking law, not merely because it is an independent civil law that identifies violence against women in the shared household as ‘domestic violence’, but also because it provides women the right to reside in the shared household and protects women in non-matrimonial relationships. The right to reside in the shared household irrespective of any right, title or interest in the property safeguards women from dispossession. It also challenges the moral assumptions infused in other Indian laws by protecting women in non-marital relationships. The law provides protection, maintenance, residence, compensation and custody orders to the woman who has so far been relegated to the status of a ‘mistress’ with little or no rights, without passing judgment or denying her merely because she falls outside the ‘morally acceptable’ institution of marriage. The PWDVA also goes beyond marital relationships. It protects mothers, sisters, daughters, widows and women who are in relationships in the nature of marriage. The objective of recognising relationships in the nature of marriage was to offer protection to women whose ‘marriages’ are not valid in law or fail to meet the requirements of a legally valid marriage.

The study captured the knowledge and acceptability of some of these key provisions. For instance, a certain percentage of POs in Delhi and Rajasthan felt that women in live-in-relationships, bigamous and fraudulent marriages should not be provided protection under the Act. When their knowledge on what acts come under the definition of domestic violence was tested, they recognised most acts of physical, verbal, emotional and economic violence but there was ambiguity surrounding forced sex in marital relationships.

The report also examined how well participants understand the objective and spirit of the legislation by asking questions about the motive of counseling. The purpose of counseling under the Act is to build the confidence of the woman and counsel the man to stop violence, as opposed to the common, incorrect perception of ‘saving families’. It was found that some percentage of the police in Delhi and Rajasthan saw counseling as a way of striking a compromise between couples. This perception trivialises the severity of domestic violence and reestablishes the need for training and sensitisation of key contact agencies such as the POs and the police. The orders from Gujarat show that in many cases, parties have reached a ‘compromise’ or ‘settled the matter’. Whether this settling happened with the consent of the woman or because she was pressurised ‘to save the family’ is not known.

Similarly, the recognition of sexual abuse as domestic violence in relationships, especially in marriages, still needs to gain acceptance. Sex as a conjugal right of the man is a widely accepted patriarchal view. The study revealed that knowledge on the subject was low among participants and sexual abuse was alleged in few orders. The inclusion of sexual abuse in the Act which includes sex without consent is a breakthrough in Indian law. (Indian law did not recognise marital rape.)

This study will hopefully become an effective model to ensure implementation of the law and determine what areas need attention in sensitisation programs. Regular audit of the law and state functionaries influence states to adopt novel methods for better implementation and promote transparency and accountability through public forums.

Please refer to the report for a detailed discussion on the data gathered this year.

 

5 comments to ‘Staying Alive’: An Audit of the Law against Domestic Violence

  • PWDVA (2005) is an unconstitutional law which does away with equality before the law as it allows only women to file complaints. The definition of “domestic violence” is not “beating” as many would have us believe. Any disagreement, emotional tantrum, marital spat can be described as an incident of “domestic violence” and many urban unscruplous women are flagrantly misuing this law to terrorise their husbands and their in-laws.

    By affixing a Rs 2 court fee stamp, urban, well-earning, affluent women are filing for exorbitant claims of maintenance and are flooding the metropolitan and district courts with their frivolous complaints. In the famous case of Nupur Aggarwal vs Rishi Aggarwal, Ms Aggarwal has filed for a compensation of Rs 150 Crore in her PWDVA complaint.

    This is nothing short of legal terrorism, and coupled with the blatant misuse of IPC 498a and the anti-dowry laws, this is actually doing a disservice to genuinely aggreived women by making the courts look at such cases with suspicion and hesitation.

    Moroever, many of these laws are cruel towards aging mothers-in-law, sisters-in-law. Just search for 498a on google and hundreds and thousands of horror stories will come pouring at you. Husbands have formed coalitions in all major cities in India to advise each other on how to defend themselves and their innocent families (in most cases) from greedy daughters-in-law.

    The situation warrants a serious exploration into avoiding misuses of these draconion laws and affording the genuinely aggreived women and MEN a fast-track legal remedy against domestic violence.

  • Sonal

    Article 15 (3) of the Constitution enables the State to make special provisions for the protection of women and children. The Constitution recognises that women have been socially and economically denied equality and therefore vulnerable to violence. Therefore, it permits 15 (3) to depart from the mandate of equality under Article. 15 (1). The purpose of the Article is to achieve substantive equality.

    The law protecting women from domestic violence is an attempt to bridge that inequality. Domestic violence is not just characterized by mere physical abuse, but includes verbal and emotional, economic, sexual abuse. The use of ‘abuse’ itself demonstrates that a mere argument is not covered under the law. The abuse must have mental and emotional impact. Also, the overall facts and circumstances of the case will be considered before passing an order. Additionally, the law provides civil reliefs. Only the violation of the protection order attracts penal consequences. I am not sure how a law protecting women from violence without attracting any punishment can be termed as a draconian law.

    I would suggest the law and the constitution should be read carefully to understand the social context in which the legislation was passed.

  • Only the violation of the protection order attracts penal consequences. I am not sure how a law protecting women from violence without attracting any punishment can be termed as a draconian law.

    The so-called protection orders usually are based on a prima-facie reading of the complaint and can include maintenance (despite the complainant being a well-earning woman), residence orders ordering the aged parents of the husband to be evicted, and custody orders for the children to be kept away from their father.

    What is the punishment for filing a false complaint? None. What is the punishment for demanding huge amounts of money even if the wife is well-earning? None. What is the punishment for filing false statements under oath to harass the husband and his family? None. After all it is a woman, a victim since centuries, so all such conduct should be forgiven. Right?

    Wrong.

    Have you actually gone through some sample PWDVA cases? And the so-called Domestic Incident Reports? They contain frivolous allegations like he took me to Vaishno Devi non-stop without rest, my mother-in-law taunted me, my husband didn’t hug me. I am not kidding.

    This is a draconian weapon, make no mistake. A husband cannot operate his SINGLY-owned bank accounts as a result of these protection orders, cannot live in or sell his own property after these protection orders, and so on and so forth.

  • Domestic against violence is a broad issue and the law concerning it must consider all the issues covering it. To those who violates the rights of a women should face consequences for its effects includes social, mental and emotional aspects that are not easily to cope up and to deal with.

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