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The Domestic Violence Bill, 2001

A slapdash draft job that fails to fill the bill

– Kumudini Pati

RITU, THE daughter of a moneyed widower was being continuously harassed by her drunkard father since her mother’s death. Her brother, no less a tormentor, went to the extent of getting her employer to remove her from the job. It was a condition such as this that had forced Ritu to accept an arranged marriage as an escape. No dowry was demanded, but Ritu’s father took care to give all he could befitting his economic status. But to her woe, she found her matrimonial home even worse – from the frying pan into the fire! Ritu ended up emotionally broken and battered. As happens in most Indian homes, Ritu had nowhere to turn. “You have to adjust somehow since now that is your home,” was the plea of her father. She tried hard to adjust but in vain. Every act of adjustment would be taken as a sign of her willingness to surrender. It was only when Ritu came in contact with AIPWA and got moral support and shelter from a woman activist that she could begin her life anew, since most of the shelter homes in Delhi have imposed numerous conditions for entry, one being not going out of the premises for a whole year! Says Ritu, “it is true that there is problem regarding some of the inmates but can independent, educated women like us live under such conditions? Ritu is fighting to get back her belongings and for a divorce. She is also fighting a legal battle against her father for occupation of the portion of her house that belonged to her. The atmosphere remains hostile and violent, as Ritu’s father and husband have joined hands in their tirade against her.

Yasmeen is a middle-aged Muslim woman, a mother of four and wife of an unemployed man taken to gambling and liquor. Though she had been putting up with a lot of harassment and violence, it was only when her husband began to force her to earn for the family through working for a porn magazine which he had discovered in the vicinity, that Yasmeen began to protest. Then started regular beatings and torture. Her only means of subsistence, an old sewing machine given by her father, was smashed. According to Yasmeen, she had approached the Waqf Board. But the maximum they would do was to give her a paltry sum of some 50-100 rupees and send her away. Says Yasmeen: “I am no beggar. I was just asking for justice; these religious institutions never take a stand when it comes to oppression of women”. She also lodged an FIR at the local police station but nothing could be done – “it is an internal matter with the family, what can we do,” said the police after warning the man once. Yasmeen approached the NCW too but after an initial bout of enthusiasm, the case was forgotten, maybe because it involved the more complex issue of fighting against anti-woman biases in the Muslim Personal Law. Dejected and nervous, Yasmeen came to the AIPWA, and after counselling, went for a divorce. She fends for 3 of her children by working in a factory (the eldest son opted to remain with the father). “All the influential Muslims in the neighbourhood had advised me to compromise with my husband,” she says. I was really demoralised after meeting them”.

Neeta, a 9-year-old girl living in a slum cluster quietly wept as she washed her blood-stained clothes after being raped by her own father. Since her mother had gone out to work it was the neighbours who raised an alarm. A case was registered but the medical report was manipulated and the man was released. Neeta’s mother says, “he has committed a grave wrong but he has already been punished enough. If he lands up in jail who will fend for us”. The scar that has been caused to Neeta will continue to haunt her all her life, but many jhuggi-dwellers feel it could have been just someone else because there is hardly any security for young girls in the jhuggis.

This is just a sample of the extreme kind of violence being encountered by young girls and women within their homes, no to speak of the innumerable cases of dowry torture and killings, instances of sexual abuse, female infanticide, sati, forced prostitution and so many invisible forms of mental torture, abandoning of widows and discrimination as well as economic deprivation that may not always be reported.

It was through years of experience in working with such women that women’s organisations and NGOs working with battered and traumatised women as well as counselling centres and legal cells came to the conclusion that it was not at all possible to deal with the intricacies of such diverse cases of domestic violence within the ambit of the criminal justice system. And, all the same, civil law would not deal with matters pertaining to situations of violent discord faced by women. The need began to be felt for a law that could provide immediate relief to women in violent situations, to address the causes for such violence and work towards its eradication in the long term. It was also common knowledge that women would turn to criminal courts only as a last resort, and many times the violence meted out to the victim would appear too trivial or invisible to sustain in a criminal court.

The National Commission for Women constituted a committee of experts in 1994 and prepared a draft proposal for a separate law to deal with cases of domestic violence. In 1999, the Lawyers’ Collective headed by a well-known Supreme Court lawyer, Indira Jaisingh, also prepared an alternative draft, which was sent out to various women’s organisations for suggestions and comments. It was finalised the next year, and is indeed, a truly comprehensive and gender-sensitive document. The NCW draft is not very strong in the sense that many facets of the complicated issue of violence within the home have not been taken into account, e.g., women living in intimate relationships with men without being legally married. It also does not mention threats, harassment, humiliation, restricting access to resources, economic and other kinds of deprivation or single acts of violence which may be considered trivial but may have a telling impact on the woman’s life. Here, the oppressor is taken to be the woman’s husband and his or her relatives and not others who might be assisting them in perpetrating violence. Moreover, medical expenses for the victim in case of injury, or even the exact amount of the fine to be imposed in case of breach of an order plus directing the employer of the respondent to deposit a portion of his wages with the protection officer, prohibiting the respondent from occupying the shared household, provision of service providers in case the aggrieved person is unable to approach the court directly or on her own, sensitisation of Government officers, police and members of the judicial system have been left out. Many of these provisions have, however, been included in the Lawyers’ Collective draft. This draft has restricted itself to violence between spouses, on children, parents and cohabitees, while accepting that there are several other forms of violence encountered by women which have to be dealt with through other legislations. One could say that the Bill would limit itself to the most urgent, i.e., matrimonial (or equivalent) circumstances. The alternative Bill has defined domestic violence in the broadest possible sense – including even threats to physical or sexual abuse, psychological abuse, harassment, any conduct which would result in an apprehension that it would be harmful to live with the respondent, or contribute towards causing mental disorder to the aggrieved person etc. It has also been clearly specified that the court shall not refuse to grant protection order on the basis that a single act of domestic violence has been committed or a single threat been issued even if the threats, if viewed in isolation, appear to be minor or trivial. A positive bias in favour of the aggrieved woman is explicit in the provision that in case of a breach during proceedings, the onus shall be on the respondent to prove that he is not liable for the offence.

After years of struggle and preparation through thoroughgoing and intensive debate and discussion, the women’s movement in India has been able to force the Government to formulate a Bill for the specific purpose of providing remedies to battered women. The Protection from Domestic Violence Bill, 2001 has finally been approved by the Union Cabinet. But much before it could be debated in Parliament and passed, on 7 march, 2002, it became subject of serious criticism by almost all women’s organisations and legal experts specialising on laws for women, when 19 odd women’s groups from all over the country urged the Government not to pass the Bill in its present form. They felt that instead of providing any relief to the victim, the Bill could be ‘dangerous in its implications for women who are victims of domestic violence.’ For one, the Bill has a definite patriarchal bias which is reflected in the very definition of domestic violence. In section 4(2) of the draft, domestic violence has been defined as ‘a conduct in which a woman is habitually assaulted or her life made miserable by cruelty even if such conduct does not amount to physical ill-treatment or as a result of which she is forced to lead an immoral life, is injured or harmed. Women’s groups have questioned the implication of the term ‘habitual assault’ which not only leaves a lot to subjective interpretation but is also extremely difficult to prove. Similarly, the life of a woman being made ‘miserable by cruelty is also quite vague and subjective. These suggest that recourse to the law will be only in extreme situations of violence and as a last resort – the question of proving the allegation may be even more difficult. The Government draft remains silent on instances of domestic violence like psychological abuse, kidnapping, threats, coercion, stalking, harassment, verbal abuse, harming children, entering place of residence or work, restricting free movement, marital rape, sati, genital mutilation and other forms of domestic violence which take covert forms. According to Jaisingh, culturally specific forms of violence should also have been recognised. Though the law will apply to all communities, She feels strongly that it will be difficult to implement in the case of Muslim women, since as soon as protection orders are issued, they will run the risk of Talaq (divorce). Also many activists feel that the issue of mental and physical torture as well as deprivation to children in situations of domestic violence should have been raised since they are invariably the worst, silent sufferers in violent homes. Said a young woman who was living as second wife with a man who had concealed his first marriage and duped her into marrying her in a mandir: “I can provide no proof of my marriage except that I have been living with him since long. The Bill will not help me at all.” In fact there are several situations where women are duped into such relationships without a legal marriage. It may also be a case of promised marriage after living together as cohabitees. The Bill has restricted itself to legally married women only, which is a far cry from present day realities.

Section 11 of the Bill enunciates the procedure for obtaining a protection order – “at any stage of the proceedings under the Act, the Magistrate may direct the respondent or the aggrieved person, either singly or jointly, to undergo mandatory counselling with any service provider”. This clause is ridiculous, since all counselling must necessarily be voluntary and can be conducted jointly with the accused only in case it is demanded by the aggrieved person. The question of monetary relief to the victim has also been left vague by the Bill. Legal experts have also felt that the Protection Officers, to be appointed by the state have been accorded wide-ranging powers, which are liable to be misused. An example oft cited is that of the Delhi Dowry Prohibition Act, under which Dowry Prohibition Officers have been appointed in 9 districts. Despite the fact that there are numerous cases of dowry coming up every day in the metropolis not a single arrest has been made by these officers. Says an activist, “what about the patriarchal attitudes of these officers and the corruption and influence that could mar the merits of a case?”

But all said and done, the most dangerous part of the Bill is the clause under section 4(2) which says – “However the aggressor will be exempt from the charge of causing injury or harm to a woman if his conduct is directed towards his own protection or for the protection of his or another’s property”. This gives the aggressor a weapon which can be used both for the purpose of saving himself, and at the same time, implicating the victim. In fact, it goes against the very spirit of a specific law for domestic violence, nullifies all attempts to provide relief to the victim, and leaves her in an extremely vulnerable situation – even worse than her previous condition of existence! Not only this, despite the fact that all those with the slightest concern for battered women have been raising the important question of shelter for the victim, since most of the forced compromises and instances of succumbing to pressure are a result of lack of secure place of residence or economic deprivation. This glaring fact has been completely ignored in the Bill. To add fuel to the fire, one of the important functionaries of the Ministry of Women and Child Development opined, “We cannot assure economic independence for the woman but protection officers can make an attempt at reconciliation. The Bill specifies injunctions against further acts of violence, which may help preserve the family”. The question then arises – is reconciliation and preserving the family the prime concern of the Bill? With this superficial understanding of the attitudes behind abetment of violence, where is the Bill going to lead? One wonders whether the entire exercise of formulating a law against domestic violence is aimed at having yet another piece of legislation to put a feather in the cap of the NDA Government, while showing a drastic reduction in the statistics relating to domestic violence.

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