FINALLY, A LEGISLATION ON DOMESTIC VIOLENCE

LEGISLATION ON DOMESTIC VIOLENCE: FINALLY, A STEP FORWARD
Newsletter Sep – Dec 2005

The issue of domestic violence and the debates around the Domestic Violence Bill have been reported in earlier issues of the Saheli newsletter. In this issue, we will focus on the Bill recently passed by Lok Sabha on 22 August 2005. The drafting of the Protection of Women from Domestic Violence Bill 2005 and pushing it through Parliament has been possible only as a result of a sustained campaign by the women’s movement over past decade.

Women’s groups that emerged in the late 1970’s and early 1980s found, in the course of their work, that a major dimension of violence against women remains hidden because it occurs within the confines of marriage and family. A deafening silence surrounded the issue of domestic violence, which, occurring within the “private” space, was seen as “acceptable” by the patriarchal social structure. Thus, a public discourse on domestic violence was extremely difficult. Besides, police, the judiciary and society insisted on viewing domestic violence only in the framework of dowry demands, or else as a “personal” problem that could be dealt with through “adjustment” and “compromise” on the part of the woman. While a majority of women subjected to domestic violence silently tolerate it, seeing no viable options in life, whenever women’s groups have raised the issue of domestic violence, or the strengthening of legislation to deal with this crime, we have been labeled as “home-breakers”. More alarming is the fact that while many facts surrounding domestic violence do not come to light, statistics reveal that every six hours, a married woman loses her life in her in-laws home. According to the National Crimes Record Bureau, domestic violence accounts for 36.1% of all registered crimes.

As a result of pressure from the women’s movement, the 1980s witnessed reform in laws relating to dowry, and the introduction of two new laws in the Indian Penal Code: Section 498 A and Section 304 B which ensured that violence from the husband and in-laws came under the purview of criminal law. Although these provisions were broad and included a wide range of violence, the police and courts continued to equate domestic violence with violence related to dowry demands.
As a result, if an affected woman was unable to prove that the violence inflicted on her was because of dowry demands, her complaint was not given any credence. This also led to the woman’s family members linking all violence to dowry demands – which could not always be proven correct. On the one hand, women were accused of registering false cases, and on the other, they were unable to prove the existence of other forms of domestic violence that were widespread as well as socially sanctioned.

Women’s groups thus felt the need for a law on domestic violence that recognized all forms of violence within the home, which would provide a legal as well as social recognition for the seriousness of domestic violence. In 1991, the Lawyers Collective drafted a model Bill on Domestic Violence. The objective of the Bill was to give a legal recognition to domestic violence; create a framework for redressal and relief from such violence and raise the issue of women’s right to matrimonial property. The National Commission for Women in 1994 came up with its own Bill (based largely on the Lawyers Collective Bill) and submitted it to the government. This was the first time that in addition to criminal provisions, civil provisions were put forth for relief from domestic violence. The definition of “domestic violence” was broad, and included four new components in addition to ‘cruelty’ defined in Sec 498 A. These new bases were: (i) harassment that causes distress to a woman(ii) forcing a woman to have sex with her husband, any member of his family or any other person (iii) any act that harms the dignity of the woman (iv) any other act of omission or commission which is likely to cause mental torture or mental agony to the woman. The Bill provided for any affected woman to approach the court for a ‘protection order’. Such an order, ensuring that the violent husband/in-laws would be stopped from continuing their violent acts, would also enable a woman to continue to live with her children in her matrimonial home. Alternatively, the order could also be used to get the court, husband or his relatives to provide the finances for the woman to live separately. (The Bill also contained a provision that a new Section 498 B be introduced, which provided for a sentence of 3 years and fine for those guilty of domestic violence.

Several years passed before there was any response from the government on this issue. However, the discussions among women’s groups and in other forums continued, and there was a concerted attempt to influence public opinion on the subject.

In 1999, another draft of the Bill was put forth by Lawyers Collective. The need for fulfilling the immediate needs of women survivors of domestic violence was stressed anew. Civil remedies for women were laid out in a detailed manner. The Bill provides women with protection such that, if they are forced to leave their homes as a result of domestic violence, they do not leave empty-handed. The Bill does not limit itself to wives and daughter-in-law as victims of domestic violence, but extends to sisters, daughters, mothers and widows. A significant aspect of this draft of the Bill was that it goes beyond the concept of a “matrimonial home” to a wider definition of a “shared household” to include non-marital relationships within the household and the need for legal protection in case of violence in these long-term domestic relationships which are not based on marriage. 

A new provision in the Bill is that it puts the responsibility on the government to appoint a “protection officer” in every district/ward whose duty it would be to ensure that a woman victim of domestic violence has immediate access to medical help, implement the “protection order” and extend all possible support to the woman. The main purpose of these provisions was to ensure that women are safely removed from situations of domestic violence, and can be assured that they will be free from the violence in future also. In case of violation of the “protection order”, criminal proceedings could be instituted. While civil remedies were prioritized, criminal remedies were to be used in case of any obstacles to implementing the civil remedies. However, the Bill does not aim to replace Sec 498A, but only supplement it.

Another new aspect of the Bill is the “Accredited Service Providers”, meaning the government or non-government institutions that provide a range of services to women survivors of domestic violence. The Protection Officer has the responsibility of publicizing these services and ensuring that affected women are able to access them. The objective of the Bill was not to replace Section 498A but it was to be in addition to that.

According to this Bill, domestic violence was defined as any action or behaviour that harms or injures or has the potential of harming or injuring the health, safety or well-being of the person aggrieved or any child in the care of the person aggrieved or in her environment and includes physical violence, sexual violence, emotional, verbal and psychological abuse and economic oppression.

Despite all these efforts and process of working on the Bill, in 2001 when the Government  of India finally acted and brought in a Domestic Violence (Prevention) Bill, 2000, it not only disappointed the women’s organizations and activists but actually was a shock for them. This Government of India Bill contained many dangerous provisions. These provisions were nowhere near the recommendations of the women’s groups as contained in the above mentioned Lawyers Collective Bill.

Such regressive state response led to another phase of nationwide campaign wherein many discussions and presentations comparing the GoI and Lawyers Collective Bills were held all over the country. Many press conferences were held and meetings with the Law Minister took place. Women’s groups released statements against the GOI Bill and wrote letters to the Law Minister. On 29th April 2002 a national level meeting was held, where the need for a civil law on domestic violence was emphasized and decision was made to send memorandums to various ministries protesting against the GOI Bill.

With the dissolution of Lok Sabha in 2004 nothing went further on this process.  After the new government was formed once again the issue was raised with them. Meetings all over the country were held and another draft of Domestic Violence against Women (Prevention) Bill 2005 was made. This was mainly drafted by the Lawyers Collective and many other women’s organizations and is based on the 1999 Bill mentioned above. The Bill got cabinet approval on 23rd June 2005 and was passed by the Lok Sabha on 22nd August 2005.

The emphasis in the law on domestic violence is to stop the violence, and ensure the right of a woman to live in a violence-free home. Simultaneously, space be created for her to take decisions about her future. It seeks to articulate women’s aspirations and rights and also to give concrete shape to these rights. It has been only after one long  decade that the Bill has now been passed. This is a significant time for the women’s movement, since it is for the first time that domestic violence has been legally recognised, and remedies to tackle it been legally accepted. But it is equally clear that there is a long battle ahead. The women’s movement has seen legislative reform as one part of the struggle against patriarchal institutions and norms, recognizing that it is not sufficient.

The struggle must go on at various levels: to begin with, the silence around the issue of domestic violence must be broken, and there must be more public discourse on the subject; to raise women’s self-esteem and confidence and bring them out of the mode of self blame and guilt. At the level of the Bill, it is important to ensure that the systems being set up work for women affected by domestic violence. This will only happen through consistent monitoring and pressure on this machinery to make it function effectively, in a timely manner, and without anti-women prejudices and notions. The government will have to set aside a separate budget for this.  

For the women’s movement, although several questions remain about the effectiveness of legal reform, the passing of the Bill has been an unprecedented step, and ensuring its effectiveness is a challenge for the movement.
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