Law and loopholes

At a rally in Allahabad, a file photograph. The majority of Indian women are grossly uninformed about how to go about seeking relief under the law.-RAJESH KUMAR SINGH/AP

ON October 26, 2006, Parliament enacted the Protection of Women from Domestic Violence Act, not only to recognise the hitherto unrecognised and latent forms of violence against women in domestic relationships (in and outside marriage), but also to provide a civil remedy to ameliorate the conditions of women in such violent relationships. For the past two years, the Womens Rights Initiative (an affiliate of the Lawyers Collective) has been looking at the implementation of the law and identifying the problem areas, at both the legal and executive levels. What the third evaluation report, titled Staying Alive: Third Monitoring and Evaluation Report 2009 of the Protection of Women from Domestic Violence Act, 2005, brings out rather conclusively is that while it is possible to have a law, it does not automatically mean that violence against women will come to an end.

The report, jointly prepared by the Womens Right Initiative and the International Centre for Research on Women (ICRW), says that judges have been found to be hesitant to grant ex parte orders even when the circumstances demand such orders and that the proceedings are almost never completed within a reasonable time frame. The report also underscores an important aspect, that of the charge of misuse of the law. The intent behind this claim, it argues, is primarily to dissuade women from using the law. It seems that as the number of women successfully procuring their rights increases, the louder the cry of misuse becomes, the report says.

But definitely, the increase in the number of cases registered under the Act shows that while women are gradually getting over the internationalisation of domestic violence, the response from the agencies providing relief has not been all that encouraging. What is also surprising is that the evaluation of the Act has been done by a non-governmental organisation and not any government agency. One indicator of the governments seriousness about the issue would have been its attempt to bring out annual, or even periodical, assessment reports.

What distinguishes this report from the previous two monitoring reports is that it presents data on the attitudes of the police, the judiciary and protection officers towards the Domestic Violence Act and gender issues. Though the findings as such are not a surprise, it may not be easy to effect a change in these attitudes without some kind of mobilisation by womens organisations.

Many important laws and amendments to existing laws dealing with the rights of women, including protecting them from the worst forms of violence, dowry harassment, for example, came about after concerted struggles by these organisations. The struggle is continuing as there still seems to be a wide hiatus between the law, the perception about the law, and the attitudes of the people who have to implement the law. The Domestic Violence Act remains primarily a civil law, with an element of criminal law incorporated into it to ensure more effective implementation. But what the Act provides is more in terms of a comprehensive definition of domestic violence, incorporating even sexual abuse within marriage. It remains to be seen how many women will actually report such abuse; as the report shows even the protection officers are reluctant to acknowledge such abuse within marriage.

The law also guarantees a womans right to residence by giving it a clear definition. However, the right to reside does not automatically translate into a right of ownership to the residential property. This part, according to the report, has not been understood by the protection officers and even some of the victims of domestic violence. Under the Act, the police, the protection officers, the service providers and the magistrate are required to inform the woman facing domestic violence about her rights as soon as they receive a complaint. She can make an application for relief under this Act and also file a complaint separately under Section 498 A (cruelty within marriage) of the Indian Penal Code, if the situation so demands. Interestingly, with the passage of Domestic Violence Act, there has been a clamour to do away with this section alleging its widespread misuse.

The report focusses on the knowledge, attitudes and practices of the judiciary, the protection officers and the police on various aspects of the law and attempts to understand and explore how these influence its implementation. What the study also found in the course of exploring the situation in the three sample States of Delhi, Maharashtra and Rajasthan was that access to the judiciary was the most difficult. Interviews with police officers were not without attendant problems, and in the absence of a comprehensive monitoring system at the national and State levels, collection of infrastructure data and court orders was not an easy task. There is no centralised depository of data on court orders. The process of requesting for and obtaining orders from courts is a major challenge, the report notes.

More importantly, the main thrust of the report is about the attitudes of the various agencies concerned with providing relief to victims of domestic violence. What is of concern is that it was not only the attitude of the police that was found wanting, but also of a sizable section of the judiciary. A number of magistrates still believe that the welfare of the family should come before the rights of women. Half the magistrates present at the training conducted by the Womens Rights Initiative subscribed to statements like for a successful marriage, sometimes a man needs to discipline his wife or too much fuss is made about domestic violence or women in live-in relationships invite violence upon themselves by entering into illegitimate relationships.

In fact, knowledge of the Act itself was found to be wanting as nearly one-third of the magistrates were confused about whether the woman can be a respondent or not and whether the wifes right to reside is valid only if the shared household is owned by the husband. The experience with counselling was also not very encouraging. Here, too, stereotypical notions prevailed as far as role expectations from women were concerned. The study found that the onus of settlement or keeping the family together, despite violence, could be imposed on women, and counselling with this intent could be detrimental and defeat the purpose for which the law had been enacted.

Other ambiguities also persisted. The magistrates, while being aware that the protection officers were the ones entrusted with the implementation of the law, were somehow unclear about the role of the protection officers in the enforcement of the court order. Several magistrates did not comprehend the role of the police in the event of the breach of a court order. In the majority of cases, women approached the police first in a case of domestic violence. In the training sessions conducted for the police in Delhi and Maharashtra, the report says that a large number of police officers, despite accepting that beating ones daughter was domestic violence, continued to retain archaic notions of domestic violence being a family affair.

The study found many infrastructural lacunae and cumbersome procedures regarding the serving of notices by the protection officers. While protection officers were appointed in all the States, although their ratio to the number of women varied from State to State, the majority of the appointments were made at the district level; protection officers were appointed at the taluk or block levels only in a few States.

However, the study also maintains that there appears to be no direct correlation between the numbers of cases filed and protection officers appointed. Therefore, it is quite possible that in States like Haryana, which has special cells in the police headquarters of each district, with specially appointed protection officer-cum-child marriage prohibition officers, it may not necessarily result in the reporting of a high percentage of cases of domestic violence. The report says that the protection officers were found to be burdened with additional responsibilities. According to the report, NGOs and service providers said women cannot approach protection officers at night or on holidays and that these officers never entertained calls, even for emergency help. The absence of a dedicated budget for independent protection officers was also construed as a serious drawback in the Act.

The attitudes of the police, who still remain the most immediate point of reference for a woman facing domestic violence, are not encouraging, the report says. A high proportion of police personnel in Delhi and Rajasthan expressed the opinion that before filing a complaint a woman should consider its impact on her children. Many of them even felt that women deserved to be beaten in certain situations and some 80 per cent believed that domestic violence was a family affair that could be best resolved by counselling the women. Attitudes towards the Domestic Violence Act were also a revelation.

Two-thirds of the police personnel interviewed in Rajasthan and one-third in Delhi felt that the Act was a tool to harass men and their relatives, and a substantial number of them felt that a woman in an illicit or live-in relationship should not be covered by the Act. The women, on the other hand, not only want the violence to stop but want some action taken against the perpetrator, which does not happen in the majority of cases. The police, in these two sample States covered by the study, were found deficient in facilitating womens access to the law.

Although discussions and conferences are organised around the implementation of the Act, the fact remains that the majority of Indian women are grossly uninformed about how to go about seeking relief under the law. The knowledge does not come automatically with a law being in place; it comes with the gradual spread of awareness, which womens organisations can accomplish. It cannot be expected of State governments, the police or the judiciary to change their attitude just because the law demands that. For example, basic information about protection officers or on whom to go to when faced with a situation of domestic violence still eludes many women.

The report does not make any concrete recommendations on amending the law but suggests that in the next two years, the ICRW and the LCWRI (Lawyers Collective Womens Rights Initiative) will track these issues in order to suggest definite amendments. It also recommends sustained training of the stakeholders. But this cannot happen in a vacuum; it needs constant public pressure and strong budgetary support.

The report says that protection officers require institutional and infrastructural status and the police need directions from the courts to assist the protection officers in the implementation of the orders, and, that there is a need for greater coordination between the stakeholders and the government for a comprehensive system to monitor and evaluate the implementation of the law.