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Reconsidered: Dangerous Bill
Severe and nationwide criticsm of the Govt's Domestic Violence Bill resulted in it being reconsidered. Indira Jaising exposes the flaws.
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November 2002, New Delhi (WFS) - According to the myth of the family as a sanctuary of tranquillity and harmony, domestic violence is a veritable incongruity, a contradiction in terms. Violence shatters the peaceful image of the home, the safety that kinship provides. Nonetheless, the insidious nature of domestic violence has been documented across nations and cultures worldwide. It is a universal phenomenon.

Indira Jaising Domestic violence is violence that occurs within the private sphere, generally between individuals who are related through intimacy, blood or law. Despite the apparent neutrality of the term, domestic violence is nearly always a gender-specific crime, perpetrated by men against women.

In 1992, Lawyers Collective drafted and circulated a Bill on domestic violence and this was widely circulated amongst women's groups and organisations including the National Commission for Women (NCW). In 1994, NCW came out with its draft Bill on domestic violence, which was vehemently criticised by women's organisations.

By this time, most women's groups were united towards the need for a law on domestic violence. And they saw this as a way in which the State would issue a statement, recognising that half its citizenry faces a peculiar kind of gender-based violence. At the same time, the statement would also imply that this fact is not acceptable to the State. It was also agreed that the law addressing domestic violence should be civil in nature, as the existing criminal laws had proven to be inadequate to meet the needs of the women.

In 1999, the Lawyers Collective came out with its draft law on domestic violence after nation-wide consultations with many women's groups. Drafted in accordance with the UN Framework for Model Legislation on Domestic Violence, this bill had the broad support of the women's movement to its major provisions. After much pressure from women's groups, the Government of India introduced a Bill on domestic violence in the Lok Sabha, titled 'The Protection From Domestic Violence Bill 2001'.

From the definition of domestic violence, to the people who can avail protection under this law, to the relief available under it, the government's Bill has drawn flak from within the country and internationally. There have been many discussions on its dangerous implications both during in-house meetings of various women's groups, as well as in the print and electronic media.

The Bill defines domestic violence as conduct whereby the abuser 'habitually assaults' the person aggrieved or makes her life 'miserable' by his conduct. Why does the assault need to be 'habitual' for it to amount to domestic violence? What does one mean by making the life of a person 'miserable'? This is a highly subjective term that would not help a judge in deciding whether a said conduct amounts to domestic violence or not. Why has the government chosen a definition that hides rather than reveals the true dimensions of violence against women?

The Government's Answer : All forms of violence will be covered by the expression in Section 4(1)(c) of the Bill - "Otherwise injures or harms the aggrieved person". Thus, everything is left to the imagination of the judge and to his/her individual perception of what is violence and what is not, which, to say the least, is very problematic.

Further, the Bill suggests that a plea of 'self defence' will be available to a man faced with a complaint of domestic violence. In real terms, the perpetrator can use this to undo the main provision - the definition of domestic violence. A man can always say he was trying to get out of a fight between himself and his wife or between his wife and his mother, and that he caused the injury complained of, not intentionally, but in order to protect himself.

If the intention is to protect women from violence, this provision must be dropped.

The Bill provides that only a woman related to the respondent by blood, marriage or adoption can take recourse to relief under the proposed law. This means sisters, daughters and mothers will be in a position to file a complaint against the abuser. However, it is debatable whether a woman who has been led to believe that she is married to a man but is not actually married for want of compliance of essential ceremonies, will be able to use the law. This will also be the case in bigamous marriages as the husband who enters into a second marriage will not be considered to be legally and validly married to the second wife, leaving her vulnerable to abuse without remedy.

There is no provision made to address the most commonly faced problem of women. Often, the violence is directed not only against the woman but is intended to cut off all her support structures, deny access to essential services and to withhold a woman's own property or children in an attempt to blackmail. The most obvious way of achieving this aim is to throw the woman out of the household.

Unless the power of restoration to the matrimonial home exists or the power to remove an abusive spouse exists, there is no purpose to this law. Indeed, it is possible for judges to argue that the absence of such provisions was intentional by the legislature and hence, no such orders can be given.

It is just not good enough to argue that such orders can be given under the provision to "pass any other direction as may be considered necessary". Considered necessary by whom? We know about the necessities of women who face domestic violence, then why are those necessities not spelt out? There is an imminent need for this law to provide for a woman's right to reside in the matrimonial home.

The law also needs to provide for the temporary custody of children (or child) to the woman - so that she cannot be blackmailed into exchanging her right to property and 'stridhan' for her children; compensation for injuries sustained as a result of domestic violence, apart from injunction restraining acts of domestic violence; and maintenance for her and her children.

Although a woman could get any of the above by way of relief (except perhaps the right to reside in the matrimonial home), this would require monetary resources enough to litigate for these rights in four to five different fora. Most often, a woman would not have access to as many resources. Any law on domestic violence needs to address this and allow a woman to seek varied relief under a 'single window clearance' system.

The present law is a complete sell-out of the rights of women. We must resist the attempt and demand that the State perform its most elementary duty, the duty to protect the life and liberty of its citizens in an effective way, consistent with its constitutional and international obligations.

Moreover, Section 11 contains a provision for the woman to undergo mandatory counselling with the abuser. This goes against all accepted principles of counselling. Mandatory counselling is one method of correcting abusive behaviour. It is ridiculous to enable the magistrate to insist on 'mandatory' counselling of the innocent party. Such counselling can only end up 'convincing' her to accept her situation - of being abused - as being normal, and to continue in a violent marriage. Counselling for the innocent party can and should only be voluntary.

The problems with this law are manifold - from the appointment and qualifications of the protection officers to the jurisdiction of magistrates, to cognisability of the breach of a protection order passed by the magistrate. Complex as its implications are, the point is that this law, if enacted thus, will turn out be extremely dangerous for women survivors of domestic violence.

It was under the impact of such discussions that the Government referred its Bill to the Standing Committee for the Ministry of Human Resource Development for reconsideration and its recommendations. Various women's groups across the country have presented their problems with the proposed Bill to the Committee. The Committee is to present its recommendations to Parliament by December.

Till then, it is for all of us - women facing or fighting violence within homes - to unite in our demand for a comprehensive law on domestic violence. A law that encompasses all women's experience of violence, and addresses the issue adequately. With a clear message to the perpetrators: Violence within the home is not acceptable.

Indira Jaising
November 2002

Indira Jaising is a senior lawyer practising in the Supreme Court of India. She is also Director of the Womens Rights Initiative of Lawyers Collective.

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