A law for the domestic domain

The Protection of Women from Domestic Violence Bill, 2005, to be introduced in Parliament soon, is comprehensive in its scope; it redefines domestic violence and provides for protection and remedy.

T.K. RAJALAKSHMI in New Delhi

ON June 23, in a decision directly addressing the issue of violence against women and children in the domestic domain, the Union Cabinet signalled its approval for the introduction in Parliament, during the monsoon session beginning in late July, of the Protection of Women from Domestic Violence Bill, 2005.

The enactment of this legislation would have far-reaching consequences for women in this country. It would fulfil a long-standing demand of women's organisations and other groups for a civil remedy for domestic violence.

Concerted pressure exerted mainly by women's and lawyers' groups ensured that the National Common Minimum Programme of the United Progressive Alliance (UPA) government would make a commitment to the enactment of such a Bill.

However, there are some areas that need to be clarified and reworded so that the legislation goes beyond individual remedy and gets to the bottom of the causes of domestic violence. It should not be seen as merely a legal problem to be resolved but as part of a wider social remedy. It is in this spirit that some of the women's organisations have made suggestions to amend the draft Bill, which addresses domestic violence of any kind and provides for protection and remedy. It is comprehensive in its coverage of the types of domestic violence and has been seen as a civil remedy for women enduring such violence or facing the possibility of such violence.

First, the Bill seeks to cover all those women who are or have been in a relationship with the abuser, where both parties have lived together in a shared household and are related by consanguinity, marriage or adoption. In addition, relationship with family members living together as a joint family is included. Even those women who are sisters, mothers, single women or women living with the abuser are entitled to legal protection under the proposed Bill.

Two, the definition of domestic violence itself is one that includes actual abuse or the threat of abuse that is physical, sexual, verbal, emotional or economic. Thus, the Bill covers the entire gamut of violence within the household, including harassment ensuing out of unlawful dowry demands to the woman or her relatives.

Three, the Bill seeks to protect the rights of women to secure housing. The experience of women's organisations working with battered and harassed women is that it is the fear of being thrown out of the matrimonial home or any shared household that has often compelled these women to put up with violence. This clause provides for the right of a woman to reside in her matrimonial home or shared household, whether or not she has any title or rights in such home or household, and this right is secured by a residence order issued by a magistrate.

Four, the proposed legislation empowers the magistrate to pass protection orders in favour of the abused to prevent the abuser from aiding or committing an act of domestic violence or any other specified act such as entering a workplace or any other place frequented by the abused, attempting to communicate with the abused, isolating any assets used by both parties and causing violence to the abused, her relatives or others who provide her assistance to escape from domestic violence. It also provides for the appointment of protection officers and the registration of non-governmental organisations (NGOs) as service providers to provide assistance to the abused in matters dealing with medical examination, obtaining legal aid and safe shelter.

At present, protection from domestic violence is available under Section 498 A of the Indian Penal Code (IPC). There exists no provision for emergency relief and immediate protection from such violence. Section 498 A states that whoever, being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term that may extend to three years and shall also be liable to pay a fine.

`Cruelty' means a) any wilful conduct that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security, or is on account of failure by her or any person related to her to meet such a demand. Experience of women's organisations and lawyer's groups such as the Lawyers Collective has been that women seldom use Section 498 A to keep their marriages alive. These groups have long felt that there was a need for a civil law on domestic violence to deal with cases of women who wanted to stop violence but at the same time needed the time to review their relationship and wished to negotiate their problems with their husbands in an atmosphere that was relatively free from violence, physical or mental.

SUPREME Court lawyer Kirti Singh who is also the working president of the Delhi unit of the All India Democratic Women's Association (AIDWA), said that compared to the previous draft, the Bill brought out by the UPA was distinctly different as far as the definition of domestic violence was concerned. Earlier, domestic violence was said to have happened only if the victim had been subjected to what was called "habitual assault", or if her life had been made miserable, or if she had been injured or harmed or forced to lead an immoral life. This outrageous and inadequate definition was rejected by all progressive women's and lawyers' groups.

Therefore AIDWA, which has been campaigning for a civil law to address the issue of marital violence in particular, has welcomed the new Bill, especially the comprehensive definition that includes the threat of violence and the rights of residence of the wife. There was an urgent need for a law that went beyond the present criminal law to ensure other rights, such as the right to matrimonial residence, which could be made available only through civil legislation. Kirti Singh, also the convener of AIDWA's legal cell, said that the fact that the aggrieved woman could approach the court directly rather than go through the police was a welcome step. However, the AIDWA and other women's groups, including the Lawyers Collective, have pointed out that the Bill allowed a woman relative of the husband, including his mother or sister, to file a complaint against his wife or live-in partner. In the AIDWA's experience, it was not uncommon for a husband or a male partner to use his women relatives to perpetuate acts of domestic violence on the woman.

In a memorandum submitted to the Prime Minister on June 27, three days after the Cabinet cleared the Bill, AIDWA and others stated: "In fact, in our experience of more than 20 years of dealing with such cases, in most cases of domestic violence, the husband's family not only sympathises with him but often also participates in perpetuating acts of violence within the home."

The memorandum, signed by leaders of seven organisations, states that by broadening the definition of "aggrieved person" and "domestic relationship", the Bill allows a relative of the husband to seek a variety of orders against a wife or a woman living in a relationship like marriage. The signatories contend that one of the fundamental notions behind having such a Bill was to ensure that the rights of women and children were protected and that they were not thrown out of the matrimonial home or abandoned. "Under the present law, these very rights can be jeopardised and wives can be further victimised," states the memorandum.

In addition, the women's groups feel that the protection officers provided for in the Bill have been given extremely wide powers that have the potential of being misused. Under the proposed Bill, such officers are supposed to be intermediaries between the court and the victim and are meant to take in applications for domestic violence and make a domestic violence report. They have also been given wide powers to assist a court in the discharge of its function. There is a legitimate fear that the protection officers might themselves be gender-biased and bureaucratic. Instead, the groups have suggested that the court, if necessary, appoint any person to assist in the case. And once the court issues the protection order, the onus of implementation lies with the state through its police. In addition, it has been suggested that the court also issue a suspended warrant of arrest, which can come into force in the event the order is violated.

YET another aspect of the Bill that has not gone down well with women's groups is the section providing for "service providers". Here, only registered NGOs can play the role of service providers. In fact, objections have been raised to the use of the term "service provider" itself, as it completely negates the idea of wider community involvement and social intervention in dealing with the issue. By also limiting the "service providers" to registered voluntary associations, the groups feel that many others, including individuals and groups who have been otherwise involved in helping out victims of domestic and other violence, will get excluded. The question raised is: "Why should a victim have to go only to a registered organisation for help." The signatories to the memorandum fear that the clause might be misused by the police to harass non-registered groups or even individuals for helping the victims.

This is not the first time that legislation protecting women from domestic violence has been drafted. The Domestic Violence Bill had an earlier avatar too, during the tenure of the National Democratic Alliance (NDA) government. It could not be passed as there were several problem areas, including the very definition of domestic violence. The Lawyers Collective, which drafted the Bill in consultation with other women's groups, found that the NDA version of the Bill, titled "The Protection from Domestic Violence Bill, 2001," was rather different from what had been expected. It was, if anything, "woefully inadequate" as it did not contain some of the essential guarantees for the prevention of violence against women. In a letter to former Human Resource Development Minister Murli Manohar Joshi on February 4, 2004, the Lawyers Collective wrote that "far from protecting women from violence, it [the Bill] had created for the first time, a protection for men in the form of a right to self-defence, which was nothing but a legalised licence to be violent towards women in domestic relationships".

Predictably, there were a lot of protests against the proposed Bill. The Bill was referred to the Parliamentary Standing Committee of the Ministry of Human Resource Development. After receiving several suggestions from individuals and organisations, including the National Commission for Women, the Standing Committee, chaired by HRD Minister Arjun Singh, accepted most of the objections and recommended, among other things, the deletion of the right to self-defence given to respondents under the Bill. However, despite a plethora of other Bills being passed, the Bill on Domestic Violence met a silent death as there was no attempt to put it to vote even up to a year after the Standing Committee submitted its report.

The new Bill, may well become a reality but it should take cognisance of the objections raised and suggestions made by those organisations and people who have been involved with women's issues and gender justice.