Info Change India

Water resources

Wed06282017

Last updateThu, 15 Jun 2017 11am

Font Size

Profile

Menu Style

Cpanel
You are here: Home | Water resources | Water resources | Analysis | Model law

Model law

By Rakesh Shukla

Laws drafted in dusty government offices are often vague and full of loopholes. The Protection of Women from Domestic Violence Act 2005 is a clear and concise piece of legislation that demonstrates the value of involving stakeholders in the drafting of a law

It is a rare pleasure to come across a law as well-drafted as the Protection of Women from Domestic Violence Act 2005. The Act is simple, clear and concise.

Laws are drafted by the ubiquitous draftsmen of the law ministry and, as a rule, are clumsy and obfuscatory. The sections drafted in dusty government offices seem deliberately framed to be vague and filled with a number of loopholes that are a haven for litigators.

The Domestic Violence Act clearly shows the tremendous advantage to be gained by involving stakeholders in the making of a law. Women's groups and organisations like Lawyers Collective were actively involved in the process of drafting this piece of legislation.

Given the widespread occurrence of domestic violence, the enactment is a welcome development. Anyone who is engaged in trying to help a female survivor of domestic violence can attest to the inadequacy of the present law. In fact, one of the first cases filed under the Act is by Natasha (name changed) from Chandigarh who has been trying other recourses available under the law.

One of the valuable features of this legislation is that it does not bar the initiation of proceedings under the Act because other remedies are being pursued under other laws. Generally, if a case has already been filed in court, it bars a person from approaching any other judicial forum for relief. In this piece of legislation, Section 26 of the Act specifically lays down that any relief available under the law can be sought in other legal proceedings before civil, criminal or family courts. It is because of this section that Natasha could ask for relief under the Act despite other proceedings pending before a judicial magistrate at Chandigarh.

In the legislation, the definition of domestic violence appears clearly based on the actual experiences of women subjected to it, and it takes care to cover the various forms of violence in real situations. Any conduct that harms, injures or endangers the health, safety, life, limb or wellbeing of a woman has been held to be domestic violence under Section 3 of the Act. The definition includes harm or injury to both physical and mental wellbeing. Physical abuse, sexual abuse, verbal-emotional abuse and economic abuse are all mentioned as being part of domestic violence.

There has been a longstanding demand by women's groups to recognise marital rape. The definition of rape in the Indian Penal Code (Section 375) specifically excludes intercourse by a husband with his wife (unless she is younger than 15 years). Similarly, forcible sexual intercourse is not included in Section 498A of the Indian Penal Code as cruelty against women. In a major and welcome departure, the Domestic Violence Act specifically includes forcible sexual intercourse in a shared household as sexual domestic violence.

Care has been taken to define 'economic abuse' in detail so that a woman is not harassed by depriving her of economic or financial resources, of basic necessities, or through not paying expenses related to shared household and maintenance. Disposal of household effects, alienation of assets or property in which the aggrieved woman may have an interest or which may be required by her or her children are counted as economic abuse. Prohibition or restrictions to continued access to resources or facilities of the shared household, which the woman is entitled to by virtue of the domestic relationship, are also included in the definition.

Similarly, 'verbal and emotional abuse' has been defined to include insults, ridicule, humiliation and name-calling. Taking into account the ground realities of our society, insults or ridicule with regard to not having a child or not having a male child have been specifically mentioned. Also included in the definition are repeated threats to cause physical pain to any person in whom the aggrieved woman is interested. Physical and sexual abuse have also been lucidly defined.

It is common for a woman in an abusive relationship to get thrown out of the matrimonial home if she decides to take remedial steps against her abuser. In fact, many women stay in abusive relationships for years as they have nowhere else to go and will be thrown out of the house if they do anything to help themselves. To address this widespread problem, Section 17 of the Act gives every woman in a domestic relationship, irrespective of whether she is the legal owner or not, the right to reside in the shared household.

The right to reside regardless of legal ownership is a valuable one, in view of the ground realities. Generally, if a woman is not working, the husband buys the house and is the legal owner. Even if the woman is employed and has contributed her earnings, the house is often in the husband's name. Things carry on until the woman tries to put a check on the abusive relationship and discovers that though she had looked upon the house as a joint one and had put her life and labour into it, the husband is the owner and she can be thrown out.

The rights under the Act are not confined to a couple or a husband-wife relationship but are available to women in any shared household. Thus, a woman residing in her parental home and subject to domestic violence by her father or brothers is as much entitled to protection under this law. This is one of the remarkable features of the law -- that it is applicable and that all the remedies are available to the woman in a marriage, in a live-in relationship, in a joint family or in any other shared household situation. In fact, the definition is broad enough to cover the abuse of live-in domestic servants, something that is rampant in our society.

The Domestic Violence Protection Act gives wide powers to pass orders to protect women from domestic violence. If a judicial magistrate is satisfied that domestic violence has taken place, or is likely to take place, he can, under Section 18, pass 'protection orders' in favour of the woman. He can pass an order prohibiting the man from committing or aiding any act of violence, from entering the woman's place of employment and from communicating with her. Orders prohibiting alienation of assets and operation of bank lockers and accounts may also be passed. Dependants, relatives and persons assisting the woman can also be protected. Since every possible situation cannot be anticipated or visualised, the Act gives additional powers to the magistrate to prohibit other acts that may be specified in the order, depending on the circumstances of the case.

Similarly, powers have been conferred on any magistrate who is satisfied that domestic violence has taken place to pass a variety of 'residence orders' under Section 19 of the Act. For instance, orders restraining the man from dispossessing the woman from the shared household regardless of the legal rights of ownership of the parties. The magistrate can also order the man to remove himself from the shared household. Relatives as well as the male concerned can be restrained from entering portions of the shared household where the aggrieved woman lives. A bar can be placed on the man disposing of or renouncing his rights to the shared household. He can also be directed to secure the same level of alternative accommodation for the woman subjected to domestic violence.

Regardless of other laws dealing with guardianship, the magistrate also has the power to grant temporary custody of children to a woman subjected to domestic violence. If he thinks that visits by the father (who may be the natural guardian under the personal law applicable) will harm the interests of the child, the magistrate can disallow visits. In fact, he can pass ex-parte interim orders, on the furnishing of a simple affidavit by the woman that she fears a repetition of acts of domestic violence.

Long delays in legal proceedings work against a woman subjected to domestic violence. The present Act tries to tackle this by laying down that the first date of hearing must be within three days of receipt of the application. Serving the application to the erring man is a major stumbling block in the processing of the case. Erring husbands deliberately avoid this in a variety of ways. If the man cannot be served, the matter cannot proceed and a time-consuming process of publication in newspapers has to be undertaken. The Act puts the responsibility of serving the respondent within a maximum period of two days onto 'protection officers' that will be appointed by the state government in each district.

A woman subjected to domestic violence has been given the right to seek compensation or damages for injuries caused to her. The magistrate has been given concomitant powers to direct payment to meet expenses incurred and losses suffered by the woman and her child, including loss of earnings, medical expenses, loss caused by destruction or removal of property. In addition, separate powers, under Section 22, have been conferred to award compensation for injuries, including mental torture and emotional distress, caused by acts of domestic violence.

The Protection of Women from Domestic Violence Rules, 2006, framed under the Act, provides clear and simple forms for application to the magistrate. They detail the nature of domestic violence to which the woman has been subjected, by putting down various acts or omissions that constitute domestic violence. The woman has only to tick the appropriate box next to the category that best describes her situation. In the column for sexual violence there is: forced sexual intercourse, forced to watch pornography or other obscene material, forcibly using a woman to entertain others, any other act of a sexual nature, abusing, humiliating, degrading or otherwise violative of dignity. Verbal and emotional abuse includes accusations/aspersions on character or conduct, insults for not bringing dowry, insults for not having a male child, demeaning, humiliating or undermining remarks, ridicule, preventing the woman from taking up a job or leaving the house, preventing a woman from marrying a person of her choice or forcing her to marry a person of their choice, and so on.

Economic violence has boxes for not providing money or not providing food, clothes, medicine for the woman and her children, forcing the woman out of the house, non-payment of rent or bills, not allowing the woman to take up employment, forcibly taking away her salary, and other similar acts. Physical violence and dowry-related harassment find mention as separate categories. The nature of the acts specified clearly show that these forms have been drafted based on real situations of domestic violence. The list is extensive, if not exhaustive, and aims to cover all possible situations. There is also a box to specify other acts that may not have found mention in the list. Similarly, a clear and simple format has been provided for complaints to the magistrate.

The Act provides for the appointment of protection officers to assist the magistrate in the discharge of his functions; their duties include ensuring legal aid, finding safe shelters and getting abused women medically examined. The officer has to make a domestic incident report to the magistrate and forward copies to the police officer in charge of the local police station. He is obliged to make the application to the magistrate if so desired by the woman. Responsibility for ensuring that the order providing monitory relief to the woman is complied with also rests with the officer. In addition, he has to inform the aggrieved woman of her rights under the Act; these have been concisely put down.

Any protection officer who fails or refuses to discharge his duties as directed by the magistrate is punishable with one year's imprisonment, a fine of Rs 20,000, or both. Similarly, breach of protection orders passed by the magistrate on an application by a woman subjected to domestic violence is punishable with one year's imprisonment, a fine of Rs 20,000, or both. Breach of residence orders passed under Section 19 of the Act, however, does not seem to have been specifically mentioned in the punishment provision. These penal provisions have been added in a bid to ensure implementation of the Domestic Violence Protection Act. Apart from a small change or two, on paper the law could not have been better drafted.

However, the sad reality in India is that although many good laws are passed they flounder on the rocks of implementation. We have no dearth of laws abolishing bonded labour, prescribing minimum wages and prohibiting indecent representation of women. Yet things continue more or less as they were. There are some land reform laws, passed just after Independence in the 1950s, which remain unimplemented!

The machinery for implementation of laws stays the same. It is not uncommon to find one officer with several designations under different laws. Thus, a sub-divisional officer may be a tree officer under the Wildlife Protection Act, a commissioner under the Bonded Labour Abolition Act, and so on. It would be no surprise to find state governments taking the easy way out and appointing people already holding government posts as protection officers under the Domestic Violence Prevention Act.

The even deeper problem is the sexist and patriarchal bias of people involved in the machinery of working and implementing the law. This issue cannot be tackled by the provision that, as far as possible, women should be appointed protection officers. Patriarchy being the dominant ideology ensures that men as well as women fall prey to it.

The working of the law is, to a large extent, determined by the attitudes of various actors responsible for ensuring its implementation. There is already a sizeable section of society, including women, that thinks that Section 498-A of the Indian Penal Code -- the law with regard to cruelty against women -- is unfair to men. Similar sentiments prevail with regard to the anti-dowry law. If the new Domestic Violence Protection Act is perceived by judges, police officers and even protection officers as a law that is unfair to men and unreasonably slanted in favour of women, that is bound to impact its working. As it is the law of the land there cannot be open refusal to obey and implement its provisions. But there will be a sort of internal sabotage. Therefore, eternal vigilance and pressure by women's groups, human rights organisations, NGOs and other stakeholders is essential for the legislation to work and fulfil its objective of protecting the rights of women and reducing domestic violence in our society.

(Rakesh Shukla is a Supreme Court lawyer)

InfoChange News & Features, November 2006