By Mrs Dipa Dube, Faculty Member, National Law University, Jodhpur
Justice, liberty, equality and dignity are the quadruple elements of free living stipulated in the Indian Constitution. They are the steps to the attainment of the goals of welfare state and all efforts of the Government are directed towards this end in view. But, unfortunately even after fifty-five years of Indian independence, we continue to grope in the dark and all dreams of ensuring liberty, equality and dignity of individuals continue to be mere farce.
Violence against women at home is the worst form of violation of the Constitutional mandate, perpetrated in present day society. If statistics are to be believed, ‘almost every six hours, somewhere in India, a young married woman is burnt alive, beaten to death or forced to commit suicide. At least 20% married women aged between 15 to 49 years experience marital violence at some point in their lives, many on an almost continual basis.’1 The nature of violence varies from physical assault, forced sexual gratification to psychological torture for reasons varying from non- payment of dowry, reinforcement of masculine fervor to mere disobedience of authoritative dictates. Such continual subjugation and harassment of women has proved to be an anathema for the physical and mental well being of women, and society, at large.
Of late, the Government of India has drafted a bill titled "The Protection from Domestic Violence Bill, 2002"2, introduced in Lok Sabha on March 8th , 2002, for the protection of the rights of women in the family. This article is a humble attempt to highlight the loopholes of the present bill and the areas where modification is desired to suppress the evil that it may otherwise cause.
Scheme of the Proposed Bill
The "Protection from Domestic Violence Bill 2002" enumerates as its object the protection of rights of women who are victims of violence of any kind occurring within the family and to provide for matters connected therewith or incidental thereto.
It is divided into five chapters comprising of 22 sections in all. The first chapter deals with the applicability of the Bill and definitions thereunder. Chapter II titled as "Domestic Violence" defines the term as constituting the following:–
- Habitually assaults or makes the life of the aggrieved person miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment; or
- Forces the aggrieved person to lead an immoral life; or
- Other injures or harms the aggrieved person.
The exclusion clause to (c) explains that nothing shall amount to domestic violence if the pursuit of course of conduct by the respondent was reasonable for his own protection or for the protection of his or another’s property.
Chapter III provides for the appointment, powers and duties of Protection Officers. They are to be appointed by the State Governments in each district to work as watch dogs over incidents of domestic violence, assist the victims in their endeavor to seek relief and at times, act as counselor for independent and impartial settlement of marital blues.
The subsequent chapter lays down the procedure for obtaining protection order. An application for the same may be presented either by the aggrieved person or Protection Officers or any other person, to the Magistrate. After hearing both the parties, the magistrate may pass orders restraining the commission of such acts in future, or for payment of such monetary relief as he deems just or any other direction considered necessary. He may even order the respondent and/or the aggrieved person to undergo mandatory counseling with any service provider
Appeal from the order of Magistrate lies with the Court of Session within a period of 30 days as enumerated in Chapter V of the Bill. It also prescribes for punishments for certain offences under the Bill and entrusts the Central Government with the power to make rules for the purposes of carrying out the provisions of the Bill.
Domestic Violence Bill: A Critique
Title: The term ‘Domestic Violence’ is very wide in its ambit. ‘Violence’ per se signifies actual use of force or coercive method causing injury or damage. According to Webster’s Dictionary, violence is a force that injures or abuses3. The term domestic violence therefore, encompasses aggressive and torturous behavior perpetrated within the four corners of the house amongst the members domiciled therein, though not strictly confined thereto4. It would include violence inflicted by man upon woman, woman upon woman as well as adults upon children within the matrimonial home. As explicitly specified by the ‘Model Code on Domestic Violence’5, ‘Family or household members’, for the purpose of "domestic violence" includes
- Adults or minors who are current or former spouses
- Adults or minors who live together or had lived together
- Adults or minors who are dating or have dated
- Adults or minors who are engaged in or who have engaged in a sexual relationship
- Adults or minors who are related by blood or adoption
- Adults or minors who are related or formerly related by marriage
- Persons who have a child in common, and
- Minor children of a person in a relationship that is described in paras(a) through (g)."6
But is the object of the present Bill to restrict all types of brutalities whether against woman, children, the old and the disabled? As is evident from the proposed scheme and the object spelled there under, the Bill addresses the everyday issue of violence by man upon his wife. Then, the Bill must possibly be renamed as "The Protection from Spousal Violence Bill 2002".
Definition: Secondly, objection rises in relation to the definition of the term "Domestic Violence". The words’ habitually assaults’ and ‘makes life miserable’ seem to connote the idea that chastisement if justified. To put it more explicitly, it advances the archaic notion that a wife may be beaten by her husband, her Lord7, to mend her ways. Such isolated incidents of use of force must necessarily be tolerated for preservation of peace and sanctity of the matrimonial home. Occasional beatings must be condoned as usual ‘wear and tear’ of marital life. It is only in the extreme of circumstances where life becomes ‘miserable’ due to continuous human ill treatment (whether physical or mental) that the law enables the woman to seek relief. Quite curiously, these words have been replicated from the Dissolution of Muslim Marriage Act, 19398. Infact, the definition seems to bear a strange resemblance to Sec 2 (viii) of the Act9, specifying cruelty as a ground of divorce for Muslim women. The idea behind such simulation is baffling to the present author. Perhaps the drafters, in their attempt to define domestic violence, assumed the definition of cruelty under Muslim Act to be the most appropriate; or else they perhaps have felt that nothing short of a wretched condition (due to cruel and barbaric treatment) can ever entitle a woman for a relief against her husband.
Is it not an irony that where the Government is intending to protect the rights of women, it is defeating its very purpose by proposing a vague and ambiguous definition? "Lawmakers need to understand that a law on domestic violence has a different role to play as compared with a law dealing with marriage or property. A law on domestic violence is in the nature of an emergency legislation with the singular aim of stopping the violence at once. Hence, the underlying theme of domestic violence law should be that no one has a right to be violent against any other person."10
Cl (2) to Sec 4 spells yet another danger-it excludes from the ambit of the definition acts done in self-defense. It gives leverage to the respondent over the victim affording him an opportunity to plead, wherever circumstances permit, that the harm or injury has been in the process of protecting his own body or property. The National Women’s Commission has, in its recommendations, suggested the deletion of the draconian clause. So also the Model Code of U.S.11 which lays down that- "Domestic or family Violence" as "the occurrence of one or more of the following acts by a family or household member, but does not include acts of self defense:
- Attempting to cause or causing physical harm to another family or household member;
Placing a family or household member in fear of physical harm; or
Causing a family or household member to engage involuntarily in sexual activity by force, threat of force or duress."
Authorities under the Bill:
a) Protection Officers- The Financial memorandum attached to the Bill clearly states that the Bill does not envisage the creation of any new posts at any level and no expenditures are involved. Against this backdrop, we are to adjudge the provision for appointment of Protection Officers in each district. The Bill makes it mandatory to appoint number of such officers in each district, on such terms and conditions as the Government may deem fit. Question arises as to who are to be these officers? Would they be from amongst the police officers or other government servants? Experience has shown that unless an exclusive body of officers is created, manned preferably by the Social Welfare department or other related departments, for the purposes of discharging the functions created therein, any attempt to heap additional responsibilities on existing officers would stifle the very essence of the Bill and ensure it premature death.
b) Service Provider: The term includes voluntary associations registered under the Companies Act 1956 or any law for the time being in force with the objective of protecting the rights and interests of women by any means including legal aid, medical, financial or other assistance12. They are expected to operate, merely as intermediaries, in the rutted road of justice attainment. In other words, the only role assigned to these associations is to summarily assist the aggrieved person, if she approaches them. They are not under any positive obligation either to provide temporary protection to victims of domestic violence or to extend residential, medical or other emergency assistance to them or to take cognizance of such untoward incidents in the locality. This absence of specific responsibility would make ‘Service providers’ mere cosmetic bodies. On the contrary, The Law for the Prevention of Spousal Violence and Protection of Victims, Japan, 2001 provides for the establishment of Spousal Violence Counseling and Support Centers by the Government. They are entrusted with specific activities, viz.,:
- To provide counseling to victims regarding various problems affecting them or introduce them to Women’s Consultants or organizations that provide such counseling.
- To provide medical, psychological, or other required guidance, in order to help victims recover their psychological and physical health.
- To provide temporary protection for victims
- To offer information and other forms of assistance, in order to promote self-reliance for victims.
- To offer information and other forms of assistance concerning use of protection order system
- To offer information and other forms of assistance concerning the use of facilities where victims can live and receive protection.
a) Counseling - The D.V. Bill has stipulated a mandatory provision for counseling of the abuser and/or the victim at the direction of the Magistrate. No doubt, counseling is an effective method. It may enable the victim to tide over her psychological condition, reduce stresses and offer some sort of mental comfort; from the side of the abuser, it may afford an opportunity for self-introspection and repentance. However, the twin objectives can be accomplished only when counseling is provided by experts, skilled in the profession, working without any prejudices or bias. As urged by the Human Rights Watch13, "Ensure that those who remain authorized to conduct optional conciliation hearings in family related matters receive thorough, rigorous and continuous training in conflict resolution techniques. This training should also seek to eliminate gender bias among these practitioners."
Furthermore, it is desirable that counseling to the victim should be resorted to only when requested by her; at no instance should she be compelled to relive her experiences, derogatory to her physical, mental and psychological conditions. The Peruvian Family Violence Law 1997 mandates somewhat a similar process of conciliation. "In every domestic violence case documented by Human Rights Watch in which prosecution conducted a mandatory conciliation hearing, the women reported that they had been pressured by the prosecutor to preserve the relationship; in some cases prosecutor simply condoned the abuse and urged the women to modify their behavior. For example, summoned by the prosecutor to a conciliation hearing, Irma Quispe’s partner admitted to beating her but said this was because she was stubborn and had refused to obey him. The prosecution then reprimanded Quispe stating "So you’re stubborn? You have to obey your husband. You have to do right by your children and improve." The mandatory conciliation requirement puts women at risk of long drawn out proceedings during which they receive little or no protection from further abuse."14 The apprehensions (of repetition of Peruvian experience in India) are not unfounded; whether conciliation or counseling, no victim would ever desire to sit across the table with her abuser and strike a deal. The experience would be a harrowed one, subjecting her to further trauma and degradation.
b) Relief: The reliefs that may be granted by a Magistrate include protection orders restraining the commission of such acts in future or monetary relief to the victim. Unfortunately, the drafters have failed to realize the gravity of the problem of domestic violence and its wide impact. Law must tighten its grip over the abuser, while ensuring respect for the human rights of victims and taking due care to protect their safety and maintain their privacy. Therefore, it must, in all cases, provide for monetary relief for the women and children, if any. Such amounts must include expenses for shelters or safe houses, food, clothing and medical treatments. The relief must come as an immediate provision for victims of such violence and continue so long as the protection orders continue.
Secondly, the abuser must be required by virtue of the Protection order to stay away from residence, school, place of employment or other specified places frequented by the victims or in any way harassing, annoying, telephoning, contacting or otherwise communicating with the victim, directly or indirectly. Any violation of this condition should compulsorily attract penal consequences. A Committee on Domestic Violence in U.S. found that,15 "[C]ourts are hesitant to impose sanctions on men who violate protection orders. Gender bias in courts places women at a distinct disadvantage. Coupled with a society and legal system that treats the family as an inviolate institution, relief for victims of domestic violence becomes virtually impossible. Because most members of the legal profession are men, they control how women are to be treated by the legal system."
Thirdly, the Magistrate may direct the abuser to participate in and complete to the satisfaction of the court, a program of intervention for abuses or psychiatric or psychological treatment.
Lastly, the abuser must be placed under the surveillance of the Protection Officer of the area for the entire period for which the order subsists. On completion of the term, he may be required to submit a report to the magistrate on the performance and/or the general conduct of the abuser. On being satisfied, and if so desired by the victim, the abuser may be permitted to resume marital relations. On the contrary, if no change of behavior is reported, the Protection order may be extended for a period, not exceeding one year, during which he shall be required to provide for the expenses of the victim. The victims, at her accord, would also be entitled to pursue long-term solutions to the problem such as divorce.
c) Miscellaneous provisions: Prevention of Spousal Violence is the basic object of the Bill. In consonance with that objective, the legislation should include provisions to curb incidents of violence in future, and not merely prescribe remedies in the event of its occurrence. Thus efforts aimed at education and enlightenment of the society should be a positive obligation on the State and /or local authorities. The Bill should distinctly specify that the State and Local governments in every state and district, in association with the voluntary organizations of the area, shall undertake training needed to deepen understanding of the human rights of victims, the distinctive character of spousal violence among government officials, encourage spread of education and awareness amongst the public to prevent the evil, promote study and research to evolve measures for guidance about rehabilitation of abusive spouses and restoration of their physical and psychological health etc. Such concerted efforts would help to fetch the much-desired results.
Men’s violence against women is deep seated- it has been perpetrated and tolerated upon for centuries either in the name of religion, culture or attitude. It has been used as a tool to reflect dynamics of power and control within the family structure. Over the years, law has remained a silent spectator to the situation refusing to acknowledge the gravity, intensity and implications of the same. It has pleaded its inability to carve out a solution, feigning privacy of the four walls as too sacred and individualist a place for the state machinery to intervene. But in 2002 the Government sought to make up for its long drawn impotency by drafting the Domestic Violence Bill. But as discussed above, "the bill requires serious consideration, since a badly drafted law with underlying patriarchal values can work to the disadvantage of half the population of the country."16 They must realize that mere enacting a law is not the end of the problem, but only the beginning of even greater nightmares. Furthermore, the law is not for the ‘lady living down the lane’; it is for all of us- our sisters, our daughters, our friends. Legal drafters must therefore act with deeper understanding and compassion. A little more empathy on their part would perhaps help to shape creative legal solutions and ensure its vigorous implementation.
1 Leena Prasad, India: Violence in the Home: Flawed Bill www.janmanch.org/Development_laws/developmentlaws.asp? oth_id=36
2 Bill No.13 of 2002.
3 O.P.Gupta, Social Factors of Violence in Vishnu R. Raut (ed.), Violence:Roots and Resolution (Professors World peace Academy, 1989)p.50; See, A.K. Therlan, Is Agape, The Answer to the Challenge of Violence? in Vishnu R. Raut (ed.), Violence: Roots and Resolution (Professors World peace Academy, 1989)p. 138.
4 "The assumption that domestic violence can only occur between men and women living under one roof ignores reality and effectively endangers women’s lives. Women are often stalked, harassed, battered or raped by men with whom they share or have shared an intimate relationship, whether or not they have ever lived together." Law of Protection from Family Violencewww.hrw.org/backgrounder/wrd/peru_women.htm
5 Model Code on Domestic and Family Violence, 1994, National Council for Juvenile and Family Court Judges, U.S.
6 id; Recommendation of the National Women’s Commission, 2002- "Domestic Violence means relationship between the person aggrieved and respondent in any one of the following ways:
- they are or were married to each other, including marriage according to any law, custom or religion;
- they are related by consanguinity, marriage or through a relationship in the nature of marriage
- they are related by adoption or are family members living together as a joint family; or
- they are or were in an engagement or customary relationship."
7 "Wives submit yourself unto your own husbands as unto the Lord. For the husband is the head of the wife, even as Christ is the head of the Church…" (Ephesians 5: 22-25) cf. J.D.Kapoor, Laws and flaws in the marriages (Konark Publishers, 2002) p.2.
8 Act No.8 of 1939.
9 Section 2 (viii) reads as "that the husband treats her with cruelty, tht is to say-
- habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
- associates with women of evil repute or leads an infamous life, or
- attempts to force her to lead an immoral life…"
10 Supra n.1; See, National Women’s Commission Recommendation, 2002-"Domestic Violence means any of the following acts committed on a woman by her husband or any of his or her relatives, namely-
- any willful conduct which-
- is of such a nature s is likely to drive the woman out of the house or commit suicide or to injure herself; or
- causes injury or danger to the life, limb or health (whether mental or physical) to the woman; or
- harassment which causes distress to a woman; or
- any act which compels woman to have sexual intercourse against her will either with the husband or any of his relatives or with any other person; or
- any other act or omission or commission which is likely to cause mental torture or agony to the woman;
- any willful conduct or throwing the woman out of the house;
- emotional, verbal and psychological abuse;
- economic abuse;
- perception to threat and potential of being harmed;
- perception to threat and potential threat to child."
11 Supra n.4.
12 The Protection from Domestic Violence Bill, 2002.
13 Law of Protection from Family Violence www.hrw.org/backgrounder/wrd/peru_women.htm
15 Katherine M. Schelong, Domestic Violence and the State: Responses to and Rationales for Spousal Battering, Marital Rape & Stalking, 78 Marq.L.Rev. 79 at p. 102-3; See also, Jane C. Murphy, Lawyering for Social Change: The Power of the narrative in Domestic Violence Law Reform, 21 Hofstra L.Rev. 1243.
16 Supra n.1.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.