The Protection of Women from Domestic Violence Act, 2005 - Private concerns in public discourse.

Chetan. Basavaraj. Singai Research Scholar Centre for the Study of Law and Governance Jawaharlal Nehru University New Delhi – 110067 chetanbsingai@gmail.com

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“What is unique about women’s experiences of violence is that these acts are not perpetrated by strangers and/or state on the basis of prejudice, but rather by men women know, and are expected to trust and love: family members; intimate partners; work colleagues; professionals; friends.” 1

“Households are sites of egocentric, strategic, and instrumental calculation as well as sites of usually exploitative exchanges of services, labour, cash and sex, not to mention sites frequently of coercion and violence”.2 Domestic Violence represents a serious abuse of power within the family, trust or dependency relationships. It undermines the basic rights of people who, because of their gender, age disability or dependence are most vulnerable to abuse. Domestic Violence is a very pervasive, serious social malady and major health (physical and psychological) problem. It has been in existence for a very long time. Domestic violence bluntly, strips women of their most basic human rights: the right to safety in their homes and community, it may kill basically questioning RIGHT to LIFE of an individual. Despite this, Domestic violence tended and still tends to be a ‘crime of silence’. This ensures that information about domestic violence is sketchy and, as a consequence the perpetrators often escape accountability and continue to commit violent acts. It is only but recently that the situation is improving in most of the regions in our country and also among countries in the globe and, for variety of reasons Violence against women is recognized as a serious social issue demanding investigation and change. In India, and probably the world over, domestic violence perpetrated against women by partners and close family members continues to remain a matter of silent suffering within the four walls of the home. Despite the awareness others may have of a woman’s ongoing experience of abuse, the phenomenon of

Kelly, Liz (2006). An International Perspective on VAW: The contemporary reality and challenges. British Council, Mumbai, December 20. 2 Fraser, Nancy (1987). What is Critical about Critical Theory? The case of Habermas and Gender. in Gurpreet Mahajan (2003) The Public and the Private – Issues of Democratic Citizenship. Sage publications: New Delhi.

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intimate violence against women is typically identified as a private matter, made invisible by society and kept under wraps because of concerns of guilt, shame and secrecy. The norms that perpetuate silence and the stigma around domestic violence in family and community settings permeate the formal institutional response as well. Available evidence indicates that this silent crime reigns rampant within Indian homes. Not only has the overall number of cases of crimes against women (CAW) gone up in the past five years, there has been a dramatic increase in violence against women within the household. Torture (cruelty by husband and relatives) forms the largest category of reported crime against women, constituting 32.3 per cent of the total recorded CAW in 1999, showing a 5.9 per cent increase over the previous year3. Contextualizing Domestic Violence: Considering the history of Violence against women there was no specific legislation in our country to deal with the domestic violence caused by the evil of dowry – which was affront on the society. Our Parliament enacted a new chapter, Chapter 20A, which contains the sole provision, Sec 498A in the Indian Penal Code (IPC).4 Definition of the expression ‘cruelty’ is somewhat truncated. There may be situations of abuse or harassment that may not necessarily endanger the life of the victim but would nevertheless make the life of the victim anything but peaceful. However, Sec 498A has been largely misused with ulterior motive. Sec 498A has become a good source of revenue for the prosecuting agencies. Secondly, if resort to Sec 489A is made and as it is both cognizable and nonbailable, the husband and in–laws would be taken into police custody and thereafter continuance of marriage itself becomes impossible as the gulf between the woman (esp. wife) and the husband and the in-laws widens so much that it becomes impracticable to bridge the gap.5 As Sec 498A is not compoundable, nothing fruitful emerges out of the efforts to settle. The need of the hour was to enact a legislation to curb domestic violence where the remedy should not be
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Crime in India, 1999, NCRB, Ministry of Home Affairs, Government of India. This section punishes a husband or a relative of the husband of a women who subjects her to cruelty with punishment of three years and fine which is not specified.

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worse than the disease. Something was to be done to avert disruption of the family. Thus, a civil law on domestic violence was enacted by the Parliament called the – The Protection of Women from Domestic Violence Act (here after DVA), 2005. Punishing the offenders and protecting the victims should be (is) the role of the DVA, 2005. The Public – Private dichotomy: bringing the private into public The law always views what goes on in the family as a ‘Private’ matter outside the purview of the state intervention. The DVA is a landmark enactment as it brings the ‘private’ into the ‘public’. Why this shift from private to public is significant? Violence in the public sphere was largely talked about by the Women’s movement during 1980s, but violence in the private sphere was ignored. This ignorance was surmounted by the implementation of DVA. The neglect of the family has been present in much of liberal feminism. The early liberalists expressed the belief that a minimalist state is necessary for protecting the freedom of the individual, the liberals attempted to carve out a sphere in which the state would not enter. Feminists argue that the relegation of the household to the private sphere has depoliticised gender discrimination and disempowered women by removing it from the circle of political intervention.6 On one hand, the popular understanding is that, justice refers to ‘public’ realm.7 On the other hand familial relationships are ‘private’, governed by natural instinct or sympathy. Thus the family becomes an important locus to struggle for sexual equality. There is an increasing consensus amongst feminists that the fight for sex equality must go beyond public discrimination to the patterns of domestic devaluation in the private sphere. In fact, Carole Pateman (1987:103) says that the ‘dichotomy between the public and the private…is, ultimately, what feminism is all about’. Confronting the injustice within private sphere requires substantial
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Eagleton, Mary (2003). A Concise Companion to Feminist Theory. Blackwell Publications: UK A realm where adult men deal with other adult men in accordance with mutually agreed upon conventions.
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changes in family life. Liberals refuse to intervene in the family, even to advance liberal goals of autonomy and equal opportunity, because they are committed to a public-private dichotomy, and because they see the family as the centre of the private sphere. Jaggar, Alison (1983:199) argues that because the liberal right to privacy ‘encompasses and protects the personal intimacies of the home, family, marriage, motherhood, procreation, and child rearing’, any liberal proposals to intervene in the family in the name of justice, it ‘represent’ a clear departure from the\is traditional liberal conception of the family as the centre of private life...as the liberal feminist emphasis on justice comes increasingly to overshadow its respect for so-called private life, one may being to wonder whether the basic values of liberalism are ultimately consistent with one another’. Further Liberals have accepted a sharp separation between the female domestic sphere and the male public sphere. The above background provides us with an understanding that DVA has made itself as an important act as it addressees the violence against women in the ‘private’ sphere, which the state did not intervene hitherto. It is only recently that society has begun viewing domestic violence as a social problem within the context of violence against women, thanks to DVA. However, even when women gather the courage to approach external institutions, they are met with insensitive attitudes and inadequate redressal mechanisms. A study on judicial records8 has shown that conviction rates in cases of domestic violence are very low. Lengthy court proceedings, inordinate delays in investigation and irrational procedures such as requirement of sufficient evidence to prove intimate partner abuse are serious deterrents for women to approach courts, let alone see the entire case through. How do we over come this paradox? The Convention on the Elimination of Discrimination against Women (CEDAW) was adopted by the UN General Assembly in 1979. India has signed

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Elisabeth, V S. (1999). ‘Patterns and Trends of Domestic Violence in India: An Examination of Court Records’. NLSUI.

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the Convention (in 1993) with some reservations to Article 16, which deals with inequities in personal laws. The Convention states that the acts of inflicting physical, mental or sexual harm or suffering of threats of such acts, coercion and other deprivations of liberty – are violations of women’s fundamental human rights. The recommendations of CEDAW include among other things, the making of a law on the civil side as discussed above. After adaptation of CEDAW, 44 countries have enacted separate laws on domestic violence.9 The need for an understanding of domestic violence and specific legislation to address it in India has been extensively debated before the Domestic Violence Act, 2005 was passed. A Bill drafted in 1994 by the National Commission on Women, and a subsequent LokSabha (Union Parliament) 2002 Bill differed substantially from recommendations and draft bills from women’s organizations such as the Lawyers Collective Women’s Rights Initiative (LCWRI), exemplifying the reluctance on the part of legislators to recognize violence within the family, or to enact any measures that may be seen as an intervention into the private sphere. The LCWRI Bill was drafted keeping in mind the situation in India— provisions such as the inclusion of economic abuse exemplified this. However, the LokSabha Bill that was introduced as a result of this debate came under severe criticism, since its provisions were such as would have resulted in a complete failure of the domestic violence legislation to make any actual difference. For example, only a legally married woman, or one related by blood or adoption could avail of remedies under the Act. Domestic violence was defined to mean habitual assault or harm. Both single acts of violence, as well as economic or mental abuse were not expressively included, and it is doubtful whether any court would have taken cognizance of such instances of domestic violence under that Bill.

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Each Nation (44 countries) has adopted Domestic Violence Act depending upon their social, political and cultural context.

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The Protection of Women from Domestic Violence Act, 2005: An Appraisal The above background is very useful to contextualize the critical appraisal of DVA. It would be my endeavour to analyse the larger approach of the DVA – The Protection of Women from Domestic Violence Act, 2005 (DVA) is it praiseworthy? Is it successful to overcome the evil of ‘domestic violence’? The Approach: The present DVA has taken over its predecessors due to the importance it places on defining clearly the concepts it works with. As will be seen, the recognition of domestic violence as a crime has resulted in broadening the understanding of what domestic violence is, who may seek protection under the act, and what type of protection may be sought.

In its understanding of domestic violence itself, the present Act clearly scores over the former Bill. In Sec.3 of the 2005 Act, domestic violence is defined in terms of mental, physical, sexual, verbal, emotional and economic abuse. The extent of domestic violence hence extends from physical hurt, to emotional and economic blackmail and may be interpreted by courts and lawyers to include and punish marital rape as well. The 2002 Bill, however, only included habitual assault and ‘cruelty’, and exempted cases in which the assaulter committed the act in self defence, or in the protection of his property. The Act introduces the concept of a domestic relationship. This has broadened the scope of those who may ask for relief under the act. Previously, only a woman who could prove a relationship with the respondent – either by blood or marriage – could avail of relief against domestic violence. The present Act only requires the proof of a domestic relationship as the basis for action. This provision goes a long way in recognizing existing social realities in India, where a vast number of marriages are legally invalid due to a number of reasons. The Act now makes it possible for the victims of violence in such relationships to approach the court for redressal.

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The Domestic Violence Act, 2005 does not account for violence perpetrated against people with whom the accused might have shared a relationship in the past, or against people who are employed to work in the household.10 (They forced the state to enact the Domestic Violence Act, 1994. Thus Malaysia became the only Muslim country to go in for such a progressive Act). The status of child is unclear in the Act as well. While Sec. 2 (b) defines who a child is for the purposes of the Act, it is not clear whether or not a child can be an aggrieved party. Sec. 18 (c) seems to suggest that a child may be an aggrieved party. The rest of the Act does not lead to the same conclusion, since Sec. 2 (a) defines an aggrieved person specifically as a woman, and in many cases the prescriptions in the Act are not child-friendly. While the authors agree that it may not be expedient to combine child-protection laws with domestic violence legislation as the two have substantially different requirements, the criticism here is in the unclear status of the child in the Act.11 The relief system in the Act clearly shows the attempt on part of the legislature to allow for the accused to have access to a variety of relief measures, to be adapted to differing circumstances. The Domestic Violence Act provides monetary compensation, Protection Orders and Residence Orders. A Protection Order is a relief measure that has been used in most domestic violence legislation internationally. It is a method by which further domestic violence is sought to be curbed by issuing directions to the offender. Once a case of domestic violence has been proved, a Residence Order details the living arrangements of the offender and the aggrieved, in order to make sure that further violence is not perpetrated on the aggrieved. Both these forms of relief
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However, the Indian definition provided doesn’t easily provide for domestic violence suffered by members in a family who are not female. Take for example, the domestic violence law in Malaysia – known for its progressive domestic violence legislation - which includes as aggrieved parties a spouse, former spouse, children, mentally incapacitated adults, and any other family member. 11 In contrast to this, the status of the child in the England legislation is unambiguous, and domestic violence law clearly applies to children. Here greater responsibility is placed on adults who live with children. They can be made liable not only for intentionally causing hurt of any kind to the child, but also for failing to protect the child from harm.

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may also be granted as interim orders while the case is underway. DVA does not entitle a crime, however if any of the orders (protection orders) are violated than it is a crime. Thus, an important advance made by the Act in understanding the nature of domestic violence has been in the combination of civil and criminal remedies. While civil remedies can be tailored to meet the circumstances of each case, criminal sanctions provide a greater deterrent effect among perpetrators. One of the improvements in the Act has been the duration of the Protection Order. In the earlier Bill, the Order would lapse after two years, and would in the discretion of the Court. In the present Act, however, Protection Orders exist till the aggrieved person applies for it to be removed, and the Court is satisfied that such an application is not being made due to coercion. Sec 19 of the DVA provides for, Residence Order (while disposing of an application under sub-section (1) of section 12) as a part of the civil relief provided for is a feature of the Act that had been left out of the 2002 Bill, which gives women the right to continue to reside in the shared household, and restricts the access of the offender to the household. This is all the more relevant when one keeps in mind the importance of the matrimonial home in the lives of women in India. Women are often discouraged from filing complaints about domestic violence because they will be left homeless and destitute once turned out of the house of their husband. The idea of residence orders therefore has a dual purpose in that it prevents the destitution of women, and empowers them to utilise the legal system available by providing security. Following Sec 12 (4) & (5) provides for a time-bound response to the application made under subsection (1) of the DVA, which make the judiciary to be efficient and the victims to be relieved. A similarly progressive, easy form of relief is monetary compensation under the Act, which includes compensation for expenses resulting from domestic violence such as cost of treatment for injuries, maintenance of the aggrieved and her

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children, and damages for mental distress resulting from domestic violence as would be awarded in a civil suit.

The criminal approach to domestic violence is also given a space in this Act, under Sec 31, which criminalizes the breach of any of the above Orders, and punishes it by a criminal sentence of imprisonment up to one year, a fine up to rupees twenty thousand or both. The punishment of fine up to Rs.20,000 seems to be effective among the poor and middle class families but what about the rich families? The combination of a civil and criminal approach to address the problem of domestic violence has been used in other jurisdictions as well. The status of child is hazy in the Act as well. While Sec. 2 (b) defines who a child is for the purposes of the Act, it is not clear whether or not a child can be an aggrieved party. Sec. 18 (c) seems to suggest that a child may be an aggrieved party. The rest of the Act does not lead to the same conclusion, since Sec. 2 (a) defines an aggrieved person specifically as a woman, and in many cases the prescriptions in the Act are not child-friendly. While it may be agreeable that it may not be expedient to combine child-protection laws with domestic violence legislation as the two have substantially different requirements, the criticism here is in the unclear status of the child in the Act.12 Further the DVA provides an understanding where the nature of domestic violence has been in the combination of civil and criminal remedies. While civil remedies can be tailored to meet the circumstances of each case, criminal sanctions provide a greater deterrent effect among perpetrators.

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In contrast to this, the status of the child in the England legislation is unambiguous, and domestic violence law clearly applies to children. Here greater responsibility is placed on adults who live with children. They can be made liable not only for intentionally causing hurt of any kind to the child, but also for failing to protect the child from harm.

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Implementation of the DVA:
“Lot of effort has gone into this Act and the rules are framed with lot of care. But a problem is that rules have to be implemented by State governments and my concern is that it should not become like a Dowry Prohibition Act, where the prohibition officers were supposed to be appointed by the state governments but never came.”13 Thus the paper further explores to look at the provisions keeping in mind the viability of implementation. In this section, some of the provisions that do not lend themselves easily to establishment have been highlighted. Since many scholars believe that the DVA is of a certain value in the redressal of domestic violence, constructive suggestions have also been made wherever possible to fill certain gaps in the provisions with regard to implementation. There has been a significant amount of debate during the drafting of this Act regarding the procedure to be adopted, which would best serve the purposes of the Act and would be the easiest to implement. An example of this has been the provision of settlement of domestic violence cases in the Magistrate’s courts. The reasoning behind this provision is that of easy access for the aggrieved. The option of Family Courts, wherever they have been set up, was also considered. However, it was noted that the Family Courts, are greatly overcrowded due to the channelling of cases under Sec 125 CrPC14 to these courts. Another argument that has been brought out against the Family Courts is that they tend to place cases of domestic violence within the field of family ‘disputes’. The argument against Magistrate’s courts has been that a Magistrate may not be in a position to carry out the objectives of the Act effectively without proper training, for which there is a lack of resources. However, the provision of relief under the Protection and Residence Orders has been far more detailed in this Act, unlike the corresponding provisions in the former Bill proposed by the Government, so that the Magistrate is bound to follow such directives. Thus, Magistrate’s courts have

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Sarah Matthew (President, Feminist Association for Social Action), Business Line, Thursday, December 21, 2006. 14 Deals with maintenance of wife and children.

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been

incorporated

to

serve

the

purpose

of

greater

accessibility.

There has been an effort in this Act to simplify and make more effective issues of procedure in the method of filing a complaint of domestic violence and of obtaining relief under this Act. It also simplifies procedural matters for an aggrieved who wishes to file a complaint. For example, the Act allows anyone, perhaps a friend or an NGO, who has witnessed a case of domestic violence to file a complaint to the Protection Officer. A problem where a valuable provision may be compromised by a lack of resources is with regard to the Protection Officers. Protection Officers, as per Sec 18 of the DVA, are a rung of officers whose duty is to assist the aggrieved party with the processing and completion of the domestic violence suit. While the exact power, functions and duties are to be set down through rules and regulations of the government, the role of the protection officer is to work in tandem with service providers [NGOs and other civil society groups] to provide the aggrieved party with sufficient legal and moral support during the course of the trial. The institution of protection officers is a useful one, emphasizing the need for societal intervention in order to prevent domestic violence, by directly addressing from an external standpoint the relationship of power and control in an abusive relationship. The problem however lies with the resources required for the creation of such a rung of officers. The grave problem is whether the protection officers will be appointed speedily and effectively. All the provisions of this Act, however, do not serve the purpose of effective implementation as the above examples, sometimes due to a lack of resources or due to extraneous factors. S.12 (4), for example, is a laudable provision which makes it mandatory for the magistrate to hear a case within three days of the complaint being filed. The idea of prompt relief is carried on in s. 12(5) which directs the magistrate to finish hearing the case within six months of it reaching

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court. However, the overcrowding of courts makes it difficult to see if they can be practically realised. Sec.10 of the DVA is important as it talks about the role of service providers. These service providers have to be registered according to legal provisions. This section provides power to these service providers to record the domestic incident report, to get the aggrieved person medically examined and to provide shelter in a shelter home. This helps the respective State government to address or report violence effectively. These service providers act as a neutral agent as the aggrieved person finds faith in them. Further criticism of the Act is with respect to Sec.14, which may prescribe counselling for either of the parties, and delay proceedings up to two months. As has been discussed earlier, addressal of domestic violence has always tended to focus on conciliation between the perpetrator and the victim, even within the criminal justice system. This is due to the judicial perceptions regarding the importance of preserving the family unit, even to the jeopardy of a victim of domestic violence. In recognition of this fact, a provision such as Sec.14 can be counterproductive in two ways. Firstly, it might jeopardize speedy disposal of the case, and secondly, it may also convince the aggrieved to continue in that situation without taking any further action. DVA in Practice: Case of Batra v Batra (2006) In the first ever judgment under the DVA the Supreme Court (SC) has ruled that a wife’s claim for alternative accommodation lie only against her husband and not against in-laws and that her right to ‘shared household’ would not extend to the self-acquired property of her in-laws. The bench of Justice S B Sinha and Justice Markandey Katju said that “the claim of a Delhi woman who had claimed her right for alternative accommodation under section 19 (1) (f) of the act is faulty” and they dismissed the case.15 The court further commented on the poor drafting of
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Hindustan Times, December 19, 2006. New Delhi.

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Sec 2 (s) of the Act, which defines ‘shared household’.16 However, the idea behind illustrating the above is to show that, where DVA finds its failure. The SC has clearly mentioned that certain provisions in DVA are poorly drafted. This is not to say that DVA is not a good act, but it has some loopholes when put in practice. Evaluation: It may be concluded from an overall study of the Act that the range and detail in which various definitions and forms of relief have been drafted, show a clear effort on the part of the legislators to provide adequate redressal and protection. It is only in some cases were it is felt that implementation has not been adequately provided for—for example, in the system whereby a breach in a Protection Order is addressed. I am tempted to quote John Murphy who says that: “No, matter how much Parliament endeavours to provide a comprehensive code of prescribed forms of conduct, the reality is that crimes are still committed, many of which go unpunished. It is no surprise, then, that mere availability of non-molestation or occupation orders does not always translate into guarantee.”17 Ultimately the most effective answer to the evil of domestic violence is the sensitivity of society as whole, and thus sensitivity to gender justice as a whole. Ultimately, the enactment of the law alone will not help - the root cause needs to be eradicated. This evil of domestic violence act has to given due recognition as a valid social concern. And it is a reading of the provisions of the Domestic Violence Act in this light that will enable it to play a significant role. Thus the combination of law and self-realization (sensitization) we can ensure and assure some sought of relief.

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ibid Cited in Domestic Violence Law: Report of Colloquium on Justice for Women Empowerment Through Law (2000). Lawyers Collective-Women’s Rights Initiative. Butterworths: New Delhi. Pp. 215

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REFERENCES:
Business Line. The domestic violence Act is well-framed, but it should be implemented right, December 21, 2006. www.blonnet.com/2006/12/21/stories/2006122100140800.htm. CEDAW – Restoring Rights to Women. Partners for Law in Development, New Delhi. 2004. Eagleton, Mary (2003). A Concise Companion to Feminist Theory. Blackwell Publications: UK Hindustan Times. SC finds fault with Domestice Violence Act, December 19, 2006. New Delhi. www.hindustantimes.in/new/181_1873583,008.htm Jaggar, Alison (1983). Feminist Politics and Human Nature. Rowman & Allanheld Publishers. The Harvester Press, Sussex, USA. Kelly, Liz (2006). An International Perspective on Violence against Women: The contemporary reality and challenges. British Council, Mumbai. Lawyers Collective Women’s Rights Initiative (2000). Domestic Violence and Law: Report of Colloquium on Justice for Women Empowerment through Law. Butterworths: New Delhi. Mahajan, Gurpreet & Helmut Reifeld (2003). The Public and The Private – Issues of Democratic Citizenship. Sage: New Delhi. Pateman, Carole (1987). The patriarchal welfare state: Women and Democracy. Center for European Studies working paper series. Harvard University Press. Protection of Women from Domestic Violence Act (2005). Government of India. www.Indialaw.com.

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