The Protection of Women from Domestic Violence Act promises much, but will it stand up in implementation?
Nasrin Sultana Delhi, Hard News Media Dec 2006
Life has little Salman Khan, Rahul Mahajan, Suhaib Illaysi, Navin Nischal, allegedly, did it. And women like Shweta Mahajan, Zeenat Aman and Somi Ali, allegedly, accept it. Crores, yes, crores of women, from IAS officers and doctors to housewives and maids, are victims in their own homes, and outside, of physical and mental violence inflicted by the men they are closest to —husbands, fathers, brothers and lovers, In the pativrata land of pati parmeshwar, where husband is god and sati is still glorified, the Protection of Women from Domestic Violence Act, 2005, marks a radical rupture, promising hope. The notification for the implementation of the Act has finally arrived, though doubts still remain as to whether it will indeed be effective on the ground in providing relief to and protecting women who suffer daily invisible and visible violence trapped within domestic walls.
According to a Centre for Social Research survey (March 2003), five crore married women in India are victims of domestic violence. Only 0.1 per cent of these cases are being reported. Out of every 100 cases that are ordered for investigation under Section 498A of the Indian Penal Code (IPC), only two meet with conviction of the offender.
Domestic Bill No 116, which had been pending before Lok Sabha for many years, officially became the Protection of Women from Domestic Violence Act (DVA), 2005, on October 27, 2006. DVA extends help to the already existing Section 498A of the Indian Penal Code (IPC).
Section 498A of the IPC states that a husband or relative of a husband of a woman, who subjects her to cruelty that is likely to drive the woman to suicide; or gravely injures her life, limb or health; or forces the woman or her relatives to give some property, should be punished with imprisonment for a term that may extend to three years and shall also be liable to be fined.
For the first time, the definition of ‘violence’ under DVA also includes abuse or the threat of abuse—physical, sexual (including marital rape), verbal, emotional or economic. “Insults, ridicule, humiliation, name calling and insults or ridicule, specially with regard to not having a child or a male child” are regarded as domestic violence. The Act also encompasses child sexual abuse; abuse of children can be reported by members of the family or children themselves. Harassment by way of unlawful dowry demands to the woman or her relatives also comes under its purview.
Under DVA, women or anyone on their behalf, who has witnessed the violence, can directly file a complaint with a magistrate. The court has to take cognisance of the complaint by instituting a hearing within three days and disposing of the case within 60 days of the first hearing. The etition that the complainant files in the magistrate’s office is called an “incident report” and not First Information Report (FIR). Punishment can range from a jail term of up to one year and/or fine of up to Rs 20,000.
In the interim, the magistrate has to authorise a Protection Officer, drawn from the state’s police (preferably a policewoman) and a Service Provider, such as a shelter home or a social activist, to investigate the case, afford protection to the aggrieved woman, and provide her with a place to stay, should she not wish to go back to her residence.
However, the unique feature of the Act is that it will afford protection to a woman who feels threatened that she will be evicted from her own home. The court can pass an injunction preventing her from being harassed by the accused. The woman will have the ‘right to residence’, that is, she cannot be driven out of her home, regardless of whether she has legal claim to the residence or not. A portion of the home may be earmarked for her and the accused may not enter her room (and workplace; school, in the case of children) or make any attempts to communicate with her orally, personally, electronically or by telephone. The magistrate hearing the complaint may impose monetary relief and monthly maintenance payments on the accused.
For the first time, the Act affords protection to women who are not ‘legal’ wives. According to Supreme Court lawyer B Sunita Rao, the ‘second wife problem’ is rampant in India. Since these unofficial marriages are not recognised, men often get away with abusing and/or not providing for the women in these ‘live-in’ relationships. DVA seeks to protect not only the wife but also the ‘female live-in partner’ from domestic violence at the hands of a ‘male live-in partner’ or his relatives.
The Act, for the first time, extends protection to all women— sisters, widows, mothers, etc., from violence inflicted by male relatives, such as sons, fathers, brothers, in-laws, etc. Women living in any ‘domestic relationship’ are protected.
Lawyers and feminists are optimistic that the Act will be effective in providing relief. Says Rao: “The Act is firmly and finely drafted. The details are worked upon well. It is polished. It grants something that the Hindu Marriage Act and Criminal Procedure Code (CrPC) do not grant to the victims.”
Shanti Aggarwal (name changed), 31, a school teacher married for the last six years, has been trying to seek divorce from her husband who has been physically violent. Although she is aware of the new Act, she is uncertain about going back to her husband’s residence. In tears, she says, “How can I go back to that brute, he does not even consider that I am a human being? I do not want his alimony or help. What I seek is the custody of my only daughter, who is five years old.”
Sadhana Arya, who teaches Political Science in Satyawati College, Delhi University and is an activist with Saheli (a women’s group based in Delhi), welcomes the fact that women may now directly go to court, instead of lodging an FIR: “Even if a woman is physically hurt and complains to the police, Indian policemen are generally hostile towards women, sometimes accusing them of having a bad character.”
Adds Nandini, of Jagori, a Delhi-based NGO, “Most women who come for counselling feel humiliated in saying that they have been assaulted by their husband. That is the reason they take so much time before articulating their feelings about the physical and mental trauma they have experienced.”
Those who deal with domestic violence cases on an everyday basis are concerned about how the Act will hold on the ground. DVA enumerates the duties of Protection Officers and Service Providers, but leaves their appointment to the states. Some states were registering cases under the Act, but have stopped doing so because they do not have the machinery in place to deal with the complaints. And what about the engagement between the courts and NGOs/shelter homes/activists that are supposed to act as Service Providers? On what basis will they be appointed, paid, etc? Will this become another way for unqualified and non-committal people to buy their way into the system?
The Family Courts Act, enacted in 1984, was supposed to provide for the settlement of matrimonial disputes in less intimidating and more sensitive surroundings than formal courts, and encourage women to come forward with
grievances such as domestic violence. However, these courts have still not been set up in 18 states and union territories, including Delhi. In places that do have family courts, poorly trained and paid counsellors try to fulfil their mandate in a conservative fashion—perhaps the only way they know—by pressuring women to return to their homes and ‘save’ their marriages and/or relinquish claims on maintenance.
In light of the fate met by family courts, it is hard to foresee whether DVA will effectively provide relief to victims of domestic violence. To train Protection Officers and Service Providers, who can deal with women already brutalised at home, a massive sensitisation training programme will be needed.