Protection of Women from Domestic Violence - Flavia Agnes and Audrey D'Mello EPW Vol - L No. 44, October 31, 2015 | Review of Women's Studies

[Majlis Law]

After a prolonged campaign for criminal and civil laws to curb domestic violence, the Protection of Women from Domestic Violence Act, 2005 came into force. However, lasting solutions to the problem continue to be elusive, as the grim statistics of wife murders and suicides by married women record a steady rise. This article takes a close look at the manner in which this law is being implemented on the ground, and the many shortcomings, even as women continue to be blamed--earlier for "misusing" the law and now for not wanting to approach the courts because the justice delivery system is tardy. The crux of the issue is the support network that the victim of domestic violence needs and it is here that the implementation of the domestic violence law has failed most spectacularly.

Going Round in Circles 

In the 1980s “domestic violence” was about the gruesome murder of wives by setting them aflame, with dowry as the root cause. Not surprisingly, various provisions were enacted to address dowry-related violence. As the campaign took off and the realisation of the broader nature of domestic violence dawned, a renewed campaign was launched to protect women from all types of domestic violence. After two decades, this culminated in an enactment meant to revolutionalise family relationships in India, namely, the Protection of Women from Domestic Violence Act (PWDVA), 2005. It expanded the definition of domestic violence to include not just physical, but also verbal, emotional, sexual and economic violence. It aimed to protect all women through a one-window remedy, encompassing within it pre-litigation support services and expeditious civil reliefs through court orders. As we complete a decade of this enactment, the Bombay High Court in a Public Interest Litigation (PIL No 104 of 2015), has once again split “violence” down the middle. It has stipulated that women facing “severe physical” domestic violence must be brought before the court for securing a protection order, but for all other types of violence, pre-litigation “joint counselling” may be conducted by the police and non-governmental organisations (NGOs) to amicably settle the dispute, even while conceding that the “assurances” have no legal binding. Indeed this is a dark day for all those who campaigned for this legislation. But given that this act has been plagued with myriad issues, which can no longer be brushed aside as “teething problems,” these guidelines to the police and NGOs have come as a huge respite for women forced to compromise in pre-litigation settlements with the complacency and callousness of those mandated to ensure their safety. The guidelines state that these agencies shall display prominently in their office that joint counselling shall commence only with the informed consent of the woman without any pressure on her to “settle” and with full knowledge of all options available to her. The fact that the carefully crafted act had no guidelines for pre-litigation joint counselling, an intervention that is often quoted as the preferred choice of victims, is in itself, a telling comment. Throughout the last decade, budgetary constraints have been projected as the main reason for the failure of this act, while other inherent problems have remained invisible. The failure of state governments to evolve holistic and long term support services for victims, lack of a convergent model and clear directions to all stakeholders about their roles and responsibilities and ill-conceived mechanisms for monitoring have posed major roadblocks for effective implementation. Delays in passing orders, lack of sensitivity of judges, and narrowing of the scope of the act by judicial pronouncements, have been the other major setbacks. The difficulties faced by the very NGOs who had campaigned for the act, and were designated as “service providers,” have driven them back to offering pre-litigation “joint settlements” and this forms a major barrier for victims to access their rights in courts. It does seem that despite its lofty proclamation to protect women from violence, and after spending massive amounts of money on a decade long campaign leading up to the enactment, followed by creating jobs, trainings, and holding high profile consultations on monitoring the implementation of the act, we have in fact not made much progress to actualise its avowed intent. There seems to be a gap which needs to be identified, if we are serious in our intent of stopping violence against women. While this paper attempts to track the history of the campaign which has spanned well over three decades, and address the overall situation in the country, the primary focus is Maharashtra, and more specifically, Mumbai, where the work of our NGO, the Majlis Legal Centre, is located.

Article Attached

Flavia Agnes (flavi...@gmail.com) is a feminist legal scholar and director of the Majlis Legal Centre and Audrey D’mello (majl...@gmail.com) is Programme Director at Majlis and coordinator of the MOHIM unit for monitoring the implementation of Domestic Violence Act in Maharashtra.