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Undermining the domestic violence law

By Jayna Kothari

The Protection of Women from Domestic Violence Act, 2005 aims to provide women with quick decisions on protection, residence, maintenance and child custody. This is an account of how the best intentions of the law are thwarted in the process of implementation

With the enactment of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) it was imagined that justice for women would be quick and relief-oriented. However, five and more years after the law’s passage, many of these notions are being reconsidered. A number of innovative solutions introduced in the law, such as having the jurisdictional magistrate’s court as the forum for domestic violence complaints, specific provisions for ex-parte and interim orders, special provisions for breach of interim orders, and others, have not worked out very well in practice.

What has been the experience of women using the PWDVA in the last few years? Did they get the relief they needed quickly. Were the courts accessible? Was the enforcement of interim and final orders easy? As a lawyer who has taken up several cases under the PWDVA, I shall try and answer some of these questions based on my experiences in Karnataka.

Effective implementation of the PWDVA can take place only if the judiciary understands the core objective of the law, which is to provide immediate relief to women in emergency situations where they face domestic violence.

Access to courts 

The women’s movement wanted women facing domestic violence to have easy access to courts everywhere to file complaints under the Act. It was decided that magistrate’s courts, which are situated at the local level, were the ideal forum; civil or family courts are only available at the district level, would not provide speedy justice, and would further ghettoise women. Studies on family courts in India and abroad showed that specialised courts offered no greater advantage to women; nor did they offer quick disposal of domestic violence cases (1). Magistrate’s courts were also chosen because criminal proceedings are usually much quicker than civil proceedings. Thus, Section 27 of the PWDVA provides the forum for filing complaints at the jurisdictional magistrate of the first class or the metropolitan magistrate’s courts (2).

A unique combination was thus arrived at -- the PWDVA, a civil law, provided for the speedy disposal of cases and easy access to justice for women in the magistrate’s courts, which are criminal courts. The courts recognised this fact. In Manish Tandon and Ors vs State and Anr (3), the Delhi High Court held that: ‘It will be apposite to take note of the fact that though it is a piece of civil law, evidently in the interests of expedition and to cut down procedural delays, the forum provided for enforcement of rights under the Protection of Women from Domestic Violence Act is that of the magistrate courts constituted under the provisions of the CrPC.’

This objective of the PWDVA, however, is being thwarted by several states in unique ways. In Bangalore, all cases under the PWDVA are assigned only to the traffic courts or to the metropolitan magistrate (traffic court). At present there are only around four to five metropolitan magistrates in the traffic courts. This assignment of domestic violence cases was done under the CrPC, which gives powers to the chief magistrate to assign cases for the better administration of the court. Thanks to this order, in Bangalore, all cases under the PWDVA are in effect assigned to a handful of magistrate’s courts, undoing all the promises of Section 27, of facilitating access to the courts. The courts are clogged as a result; some of them take up domestic violence cases only two days a week. This makes obtaining emergency interim orders extremely difficult and nullifies the purpose of the PWDVA and speedy relief for women. The mandate of disposal of cases within 60 days is a long way from being achieved, with the magistrates’ caseload increasing every day (4).

In the rest of Karnataka too, domestic violence cases are handled by the traffic courts. The registrar general of the Karnataka High Court has reportedly issued a circular to all magistrates to fix one day a week/fortnight/month for the hearing of cases under the PWDVA (5). Such measures, though prompted by procedural reasons, strike at the core of the PWDVA.

Interim orders

The PWDVA, under Section 23, specifically provides for ex-parte and interim orders for protection, residence, monetary relief, child custody, etc, to be granted to women facing domestic violence. Section 23 (1) refers to interim orders generally and Section 23 (2) provides specifically for ex-parte orders.

Usually, protection orders restraining the abuser from committing any further acts of domestic violence are easily obtained from the courts as they are negative orders. Positive orders such as residence orders, maintenance and custody orders are more difficult to obtain and usually take a long time as notices must be issued to the respondents, after which they are required to file their reply, then arguments are heard on the applications and finally orders are passed. 

In Karnataka, especially in Bangalore, magistrates were liberal in granting ex-parte maintenance orders as well when prima facie evidence of domestic violence was found. Even when ex-parte orders for maintenance were not granted, after a notice was issued and in cases where the salary certificate of the respondent was available and produced, magistrates would grant maintenance orders fairly quickly, and were reasonably generous in awarding maintenance.

Thanks to a 2009 judgment by the Karnataka High Court, however, the procedure of even granting interim orders has been brought to a standstill. Justice Jawad Rahim in Krishna Murthy Nookula vs Y Savitha (6) held that before granting any interim relief the magistrate had to conduct an inquiry as prescribed under the Code of Criminal Procedure for summons cases, and pass orders only after taking evidence in the matter. He only excluded orders granted ex-parte, and held that all other interim relief orders could be passed only after taking evidence, which could take months, even a year or two. Holding that even interim relief will be available after collecting evidence undermines Section 23 of the PWDVA which provides for the claiming of  immediate interim relief.

Following this high court decision, most magistrates across the state are granting ex-parte orders only where required, leaving maintenance and residence orders to be decided after evidence has been taken. The judgment has not been challenged and, unfortunately, unless it is overturned by the Supreme Court it will continue to subvert the PWDVA and deny women quick interim orders as envisioned under the Act.

Maintenance

While the PWDVA has specifically provided for monetary relief in Section 20, with maintenance based on the status of the parties, this is not being seriously followed by the higher courts in Karnataka. It is strange but true that the best orders for monetary relief are often granted by the lowest courts, that is, the magistrate’s courts and as the respondents appeal to higher courts, the monetary relief amount gets reduced further and further. The general experience in Karnataka has been that the sessions courts and the high court usually reduce the maintenance amount granted.

In conclusion, one could say that the working of the PWDVA leaves a lot to be desired. The ideals it was inspired by are very different from the reality in which the courts and judiciary implement the law. The Karnataka High Court’s judgment, for example, in Krishna Murthy Nookula vs Y Savitha, makes it clear that even members of the higher judiciary have not understood the provisions of the PWDVA, and have been treating it as a criminal law when in fact it is a civil law providing civil remedies to women.

Unless the courts clearly understand the PWDVA as a law that works positively for women and children facing domestic violence it will not be effectively implemented. Unfortunately, while some magistrates are made to undergo training, no training on the PWDVA is provided to sessions court judges and judges of the high court. And so we find that good orders passed by magistrates are often reversed by the sessions and high courts.

Allegations are still being made that women are misusing the PWDVA, when, in fact, interim relief takes months to obtain, if at all, cases drag on, sometimes for years, though the timeframe suggested for disposal is two months, and even a breach of orders is not taken seriously. In such an environment, is it even reasonable to say that women are misusing the law? In fact, women who file complaints often end up feeling harassed and violated twice over in their daily tribulations with the court system.

Only when the PWDVA is understood as a law which aims to protect women from violence, recognise their right to live within the home without abuse, and protect their rights to equality and life with dignity guaranteed under Articles 14, 15 and 21 of the Constitution, will it be truly effective. Until that happens, the courts and the legal system will find a myriad ways to delay justice and effective access to the law for women. 

(Jayna Kothari is Founder, Centre for Law and Policy Research, Bangalore, and an advocate practising in the Karnataka High Court and Supreme Court)

Endnotes

1 Garoupa, Nuno M, Jorgensen, Natalia and Vazquez, Pablo, ‘Assessing the Argument for Specialised Courts: Evidence from Family Courts in Spain’ (April 2010) International Journal of Law, Policy and the Family, Vol 24, Issue 1, pp 54-66, 2010
2 Section 27 (1). The court of judicial magistrate of the first class or the metropolitan magistrate, as the case may be, within the local limits of which:
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act
3 Criminal M C No 1784/2009 available at http://www.indiankanoon.org/doc/1420423/
4 ‘Staying Alive’, 5th Monitoring and Evaluation Report 2012
5 Ibid, at page 36
6 Criminal Revision Petition No 815/2009 available at http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/500665/2/CRLRP815-09-09-12-2009.pdf

Infochange News & Features, March 2013