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Adding insult to injury

Print edition : Mar 30, 2002 T+T-

The Protection from Domestic Violence Bill, introduced in the Lok Sabha on March 8, International Women's Day, draws flak from women's groups for not adopting a comprehensive approach.

IN a symbolic gesture on March 8, International Women's Day, the Bharatiya Janata Party-led National Democratic Alliance (NDA) government introduced the Bill on domestic violence in the Lok Sabha. However, the move did not elicit the expected applause. The Bill also failed to impress women's organisations, which represent the victims of domestic violence. In fact, the NDA government has often been accused of reducing the issue of women's empowerment to a slogan. Critics point to the reluctance of the government to pass the Bill seeking the reservation of seats in Parliament and the State Assemblies for women as an example of the government's attitude. They argue that the current Bill is yet another piece of legislation that exposes the mindset of the government. Although some women's organisations, like the Lawyers' Collective Women's Rights Initiative (LCWRI), have given the government its due for recognising the existence of domestic violence, they have demanded substantial amendments to the Bill. Meanwhile, the All India Democratic Women's Association (AIDWA) has categorically rejected the Bill stating that as the main parts of the Bill are defective, amending portions of it would not be sufficient. The Bill has been listed for discussion and possible adoption by Parliament in the current session.

Over the past one year, women's groups have been waiting for the introduction of a Bill that would guarantee protection for the victims of domestic violence. They have been campaigning for a piece of civil legislation that would address the entire gamut of domestic violence. According to them, the increasing incidence of domestic violence and the failure of the laws of the land to address the problem necessitated new legislation. However, the current Bill is flawed in the very definition of domestic violence. It does not address the issue of domestic violence in a manner that would at least indicate the neutrality of the government; it does not even touch on several important aspects that women's groups have constantly focussed on. In fact, the LCWRI apprehends that if the Bill is passed by Parliament in its current form, its consequences would be dangerous.

For the women's organisations, the ultimate objective has always been the prevention of domestic violence. However, the very name of the current Bill speaks volumes about the government's approach to the issue. The Bill, named "The Protection from Domestic Violence Bill, 2001" is different from the one drafted by the LCWRI in 1999, called "The Domestic Violence Against Women (Prevention) Bill, 2001".

Section 4(2) of the Bill defines domestic violence as conduct in which a woman is habitually assaulted or her life is made miserable by cruelty even if such conduct does not amount to physical illtreatment, or as a result of which she is forced to lead an immoral life, is injured or harmed. However, the aggressor will be exempt from the charge of causing injury or harm to a woman if his conduct is directed towards his own protection or for the protection of his or another's property. It means that a person can either injure or harm a woman related to him on grounds of self-protection and protection of not only his property but another's property. AIDWA has described the section as dangerous and retrograde as it provides an escape route for the person who commits acts of domestic violence. Anybody can make the plea that the assault was made in self-defence and that his property was threatened. In a way, it even impinges on the economic rights of the woman who, in the process, not only cannot take anything that "belongs" to her husband but also get assaulted if she does.

Moreover, the definition does not reflect the language of rights and instead falls back on the archaic concept of "making the life of an aggrieved person miserable". It is inadequate also because it does not even take cognisance of other forms of violence - mental, physical or even psychological - which are mentioned in the United Nations framework for model legislation on domestic violence. The model states that all acts of gender-based physical and psychological abuse by a family member against women in the family, ranging from simple assaults to aggravated physical battery, kidnapping, threats, intimidation, coercion, stalking, humiliating verbal use, forcible or unlawful entry, arson, destruction of property, sexual violence, marital rape, dowry or related violence, female genital mutilation, violence related to exploitation through prostitution, violence against household workers, and attempts to commit such acts shall be termed "domestic violence". Significantly, India is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In its definition of violence, the CEDAW had included all kinds of possible violence that could be perpetrated on women in the family.

The LCWRI argues that much of the definition has been left to the Judges to decide when actually the law should be providing the framework of guidelines according to which decisions are taken. One of the problems with the linkage of habitual assault and domestic violence is that it presupposes that if a woman is beaten up occasionally, it would not constitute domestic violence and that she will not have any entitlement to any kind of relief.

According to Kirti Singh, convener of the legal committee of AIDWA, a sustained demand from women's organisations had been that the legislation also should provide for the right of a woman and the children to reside in the matrimonial home or the right to be provided a home by the husband or the father in situations of domestic violence. Often women are thrown out arbitrarily from their matrimonial homes and most often they return to them to suffer the violence for fear of ridicule from society and because of the widely held view that a married woman's place is her husband's home and not that of her parents. This aspect has been completely glossed over in the current Bill. Significantly, a similar Bill drafted by the National Commission for Women in 1994 and the LCWRI's 1999 Bill had taken cognisance of these rights of residence for victims of domestic violence. The right to a matrimonial home, the LCWRI says, is the most important omission. None of the existing matrimonial laws, whether Hindu, Muslim, Christian or Parsi, contains the provision for the right to reside in the matrimonial home. This makes the woman more vulnerable and amenable to all kinds of settlements and blackmail. The choice is either to return to a violent home or get a divorce by mutual consent, giving up all rights to a share in matrimonial assets or a decent alimony. The only remedy, states the LCWRI, is to declare unambiguously that the woman has a right to reside in the shared household.

Kirti Singh told Frontline that previous legislation had specified the kinds of injunctions a woman could ask for to stop the husband from repeating the acts of domestic violence. It had also been recommended that courts could pass orders regarding maintenance and custody under this law. However, the current Bill is either vague or silent on these aspects.

WITH regard to the aspect of relief to be granted to the aggrieved woman, Sections 5, 6, 7 and 8 of the Bill refer to the appointment, duties, powers and so on of a protection officer who is to be appointed by State governments in each district. However, women's groups feel that the protection officers have been accorded wide powers, which can be misused. Section 6(3) of the Bill lays down that it is the duty of the protection officer to assist the aggrieved person and the respondent in an impartial and independent manner to reach an amicable settlement of the grievance. Although it sounds fair enough, organisations like AIDWA say that most cases were settled against the interests of the victim without any regard for her safety and security. Women victims of violence were often forced to return to their husbands' homes to face further violence. Moreover, AIDWA says that protection officers need to be gender-sensitive and that there is a possibility that appointing them as intermediaries would bureaucratise the process.

Women's groups have also criticised Section 11 of the chapter dealing with procedures for obtaining a protection order. It states that at any stage of the proceedings under the Act, the Magistrate may direct the respondent or the aggrieved person, either singly or jointly, to undergo "mandatory counselling" with any service provider. This aspect of counselling could delay the process of obtaining an order, jeopardising the victim's safety and security. Women's groups feel that prior to any such mandatory counselling, the period of which is not specified, a protection order should be passed as it can ensure basic security for the victim. Mandatory counselling, according to the LCWRI, can only end up convincing the woman to accept her situation and to continue the relationship. They say that counselling for the aggrieved should be voluntary.

Similarly, Section (2)(k), which provides the definition of a service provider, has also drawn flak from women's groups. According to the Bill, service providers should be registered voluntary associations, which have the objective of protecting the rights and interests of women by any means including legal aid and medical, financial or other forms of help. The fact is that there are several organisations that are not registered with the government but dealing with women's issues and campaigning for women's rights. Moreover, such a clause could discriminate against such organisations and even victimise them for not possessing registration.

It is alleged that even the protection orders mentioned in Section 14 of the Bill can be of limited scope and effect. The magistrate, after hearing the parties and being satisfied that the aggrieved person is being subjected to domestic violence, can pass protection orders that refrain the respondent from committing any act of domestic violence or pay such monetary relief as the magistrate deems just and specify the period in the protection order within which the amount of such monetary relief is to be paid by the respondent or pass any other direction as may be deemed necessary. Women's groups feel that the order should at least subsume the right to residence at the matrimonial home. It should also issue detailed instructions that would prevent a person from committing any act of domestic violence; from aiding and abetting in the commission of acts of domestic violence; from entering the place of employment of the aggrieved person or the residence of such a person, and from causing violence to persons assisting the aggrieved person. The order, women's organisations aver, should be comprehensive, encompassing the areas where the possibility of violence exists. Significantly, the Bill also lacks a definitive description of the nature of monetary relief, which, if any, would be only for a limited period.

In short, the Bill is flawed, its intent is confusing and the contents are superficial. Several members of Parliament have written to the government citing the inadequacies of the Bill. Any attempt to push it through by amending some portions would not be sufficient as the remedy lies in changing the very mindset behind the legislation.