Gender Issues

Law and limitations

Print edition : April 01, 2016

Women protest against sexual and domestic violence, at Gandhi Park in Dehradun, Uttarakhand. A file picture Photo: PTI

With domestic violence cases on the rise, the debate has now intensified over whether the victim needs pre-litigation counselling or aggressive court intervention.

REENA PATIL (name changed) was subjected to acute physical and sexual assault by her husband right from the time she was married. In 2007, she came to know that there were special cells in police stations to help women like her. She had been battered and bruised for almost five years and the demand for dowry was growing. She was made to wait on her in-laws, cook, clean the house and look after the children and was often locked up and abused by her husband and his family.

Her parents, as is wont in conservative homes, did not want her to quit her marriage and so bring shame on them. Having suffered several indignities, Reena Patil eventually approached the police, who did not record her case but sent her to the special cell in the police station. Counsellors at the cell attempted to settle the matter and forced her to go back to her husband, who claimed that she had abandoned him and that he wanted her back. When she went back to her husband, he brutally raped her, saying that it would teach her a lesson and she would never have the audacity to approach the police again. Reena Patil, who was barely able to breathe after the assault, was taken to a hospital. The hospital authorities refused to register a case. She was treated and sent back to her husband. Although she had lost all faith in the system, Reena Patil made one last attempt to seek help as she wanted to save her life for the sake of her children. Fortunately, she found the right non-governmental organisation (NGO) and, eventually, found justice through the courts.

Reena Patil’s case is just one of the thousands of cases that fall within the ambit of the Protection of Women from Domestic Violence Act (PWDVA). The Act was passed in 2005 following a relentless campaign by lawyers and women’s rights activists against the growing number of domestic violence cases in Maharashtra and elsewhere in the country.

According to statistics published by the National Crime Records Bureau (NCRB) in its “Crimes in India 2014”, the highest number of cases recorded in the section “Crimes against women” was under the head “cruelty by husbands or his relatives”, or domestic violence. In all, 1,22,877 cases of domestic violence were recorded in 2014 as against 1,18,866 in 2013.

A judgment passed by the Bombay High Court in October 2015 has started a debate on how domestic violence cases should be treated and whether pre-litigation counselling and mediation services should be permitted.

The court agreed with NGOs that pre-litigation counselling should be permitted under strict guidelines. It ruled that only women facing “severe physical” domestic violence should approach the court to secure a protection order. For all other types of violence, it said, pre-litigation “joint counselling” could be conducted by the police and NGOs to amicably settle the dispute, even while conceding that the “assurances” were not legally binding.

The judgment has divided NGOs and women’s rights groups. While one section believes that pre-litigation counselling will protect affected women from the harshness of court hearings, the other believes that there is absolutely no space for counselling when a woman is physically abused and that she needs aggressive intervention and protection, which only the courts can sanction. Besides, there is ample proof to show that “counselling” is done by poorly qualified protection officers (POs), the latter group says.

The court ruling split “violence” down the middle, Audrey D’Mello, programme director of Majlis, an NGO that provides legal representation for individual women in courts, said. For those campaigning for women’s rights, this is a huge setback. The danger of pre–litigation joint counselling, which is what the court allows, is that it is not legally binding; it cannot do what the courts could do in such situations.

“In theory it seems like a good policy, but in practice it is another story,” Audrey D’Mello said. It takes a lot of courage for a woman to speak up. When she does, the situation needs to be addressed aggressively. The intervention has to be such that she is completely protected from the moment she makes the complaint. The in-between stage, of first speaking to counsellors, causes more damage than good. “Indeed, this is a dark day for all those who campaigned for this legislation [PWDVA],” she said. Audrey D’Mello said: “We have seen poorly qualified, insensitive and even corrupt counsellors. The fact that the police do not want to record the case shows the lack of awareness and unwillingness to help. Moreover, how can you send a battered woman back to the place from what must be a living hell. Currently, the support structure is virtually non-existent.”

A petitioner in the case, she said going to court was not the way forward. “I have dealt with thousands of cases, but very few achieve a quick result from the court. Cases drag on for years and nothing is achieved. This judgment will allow us NGOs, who are experienced counsellors, to be a step before the victim faces the court.” She said a study (not published yet) conducted by the Tata Institute of Social Sciences (TISS) on domestic violence found that out of the 2,466 cases filed in the court only 821 were disposed of and only 166 cases were heard on merit.

Besides, the woman should have the right to choose her course of action, she said. The court cannot be the first step. She has to be led in that direction if the case warrants it.

The issue goes back to 2014 when the Government of Maharashtra, after consulting women’s groups, lawyers and judges, issued a circular prohibiting pre-litigation counselling in domestic violence cases. The government was advised that counselling had become a racket and that courts needed to step in if the State was serious about stopping domestic violence.

The circular stated that “counselling and mediation is restricted only to post-litigation, and counselling provided towards domestic violence victim without the direction of the court will be a breach of the law”. Additionally, it stated that “no agency should do counselling and mediation without the direction of the court”. They could only “inform” a woman of her rights.

Jaya Sagade, director of the Women Studies Centre, ILS Law College, Pune, wrote to the Bombay High Court in July 2015, saying the “circular infringes on the rights of the woman who are victims of domestic violence and also NGOs working for promotion and protection of women’s rights”. She said the circular went against the spirit of the PWDVA. The court treated Jaya Sagade’s letter suo motu as a public interest litigation petition. In its October 2015 judgment, the court declared that it felt “compelled to set aside the impugned circular issued by the State of Maharashtra dated 24th July, 2014, as being discriminatory, arbitrary and unreasonable but not without laying down guidelines for the framework of pre-litigation counselling conducted by any of the registered service providers, including NGOs, counsellors, and the police”.

The judgment stated that “whatever that be, a violated woman must be entitled to the freedom of choice. It should be for her to decide the course of action. It is for NGOs, who have the expertise, to provide her the advice. It is for the state to make available to her legal rights.”

The judgment says “…the remedy lies not in prohibiting the practice altogether but in rejuvenating it within reasonably prescribed mechanisms and parameters”.

The court perhaps does not want to be bogged down by hundreds of cases. As it is, the number of cases was on the rise, a lawyer involved in the case said. Activists unhappy with the court ruling said the government probably wanted to increase the capacity of the special cells, which would necessitate the hiring of more people. Opening special cells for women was part of a project started by TISS in 1984. The State Department for Women and Child Welfare found the project helpful and collaborated with TISS to start 40 cells in police stations across Maharashtra. This involved appointing a permanent PO to head the cell and help the affected woman file a domestic incident report (DIR). There are 101 working cells in the State; 43 more have been sanctioned.

While some activists dismiss the setting up of cells as an employment racket, others insist it is needed to encourage women to report atrocities. When this correspondent tried to reach a few special cells, she found that the police stations in Mumbai were aware of the procedure but were sceptical about registering cases. “We need to verify and recheck before we take a complaint. Sometimes women bring their household issues for us to sort out or make complaints to take revenge on their in-laws. The case has to be genuine,” a woman police officer said. Attempts to reach the cells in the districts were futile. These were the obvious flaws at the ground level, Audrey D’Mello said.

According to the 2015 judgment, the victim has several entry points to file a complaint. She can approach the police, medical workers, POs, shelter homes and service providers (NGOs). The PO will first assist the woman in seeking counselling and other related services, after which he/she will file the application in court. A lawyer or legal aid could also file the DIR and, subsequently, an application in the court.

While, the court gave NGOs the right to intervene and be involved in pre-litigation counselling, it also ensured that a set of guidelines for conducting counselling under the PWDVA are posted permanently and prominently at all police stations. “This is a good move and will hopefully make counsellors do constructive work,” an activist said.

Some of the guidelines are as follows: An aggrieved woman facing domestic violence must be informed about her legal rights under the PWDVA; she has the right to choose her future course of action; no one can force her to settle her claim or grievance; any joint counselling or mediation with her spouse/husband’s family shall be commenced only upon her voluntary, informed consent; no joint counselling/mediation shall be undertaken in a case of serious physical domestic violence suffered by a woman. In such cases, the police/service provider shall file a DIR under Section 10(2) (a) and an application under Section 12 of the Act to the relevant Magistrate seeking any of the reliefs provided. In all other cases, the police/service providers may settle the dispute amicably through reconciliation or amicable separation.

A grim situation

Maharashtra’s domestic violence record is extremely unfortunate. According to NCRB data, the State reported 8,542 cases of cruelty by husband or his relatives in 2013 and 7,415 cases in 2012. Maharashtra has recorded the seventh highest number of cases and comes after West Bengal (18,116), Rajasthan (15,094), Andhra Pradesh (15,084), Uttar Pradesh (8,781), Assam (8,636), and Gujarat (7,812). According to the NCRB, Maharashtra reported 26,693 crimes against women in 2014 compared with 24,895 in 2013, indicating a dire need for reforms. West Bengal reported the highest number of cases (38,467), followed by Rajasthan at 31,151 and Madhya Pradesh at 28,678. “The numbers are increasing because cases are finally being reported and registered. I would say that in reality the number is at least three times more,” a social worker said.

Audrey D’Mello said the PWDVA was a huge move forward when it was introduced. However, there have been roadblocks along the way. To begin with, State governments are unable to provide long-term support to victims. Governments lack a convergent model and are unable to provide clear directions to all stakeholders about their roles and responsibilities. They have an ill-conceived method of monitoring. The other setbacks are delays in passing orders, lack of sensitivity among judges, and the narrowing down of the scope of the Act by judicial pronouncements.

The PWDVA was a landmark Bill, which expanded the definition of domestic violence to include not just physical but also verbal, emotional, sexual and economic violence. It aimed to protect all women through a one-window remedy, encompassing within it pre-litigation support services and expeditious civil relief through court orders. It was passed to address the gap between the constitutionally guaranteed equal rights and gender-based discrimination at homes.

While the law may be on the right track, the growing numbers of cases seem to indicate a huge flaw in the system and in the support services. Undoubtedly, the law has helped victims, but it requires more than a law to address the issue of domestic violence.

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