Domestic Violence Act: A milestone for India and Pakistan

By Oxfam International

By  Indira Jaising

The recently passed Domestic Violence Act in Pakistan is a classic example of the cross pollination between countries of the SAARC region and of the best of our respective laws.

We often do not realize it but laws acquire a trans-border life on their own, as there is no stopping a good idea.

India enacted its Protection of Women from Domestic Violence Act (PWDVA) in 2005; brought into force on 26th October 2006. It is one of the most progressive acts relating to violence against women in India. It enables direct access to courts; cutting out role of the police in filing a FIR. This was a conscious decision to enable direct access to court and to reduce one level of intermediaries. Jurisdiction was vested in criminal courts to underscore the importance of the law, to gain access to the police for enforcement of court orders and to make the law accessible at the territorial level to women in their own neighborhood.

Criminal courts were empowered to give civil relief, breaking down the belief that civil and criminal law systems can never meet and build expertise in criminal courts on civil law of injunctions.

The right of the woman to reside in the shared household was declared by law to exist as a protected right for the first time in Indian legal history.

Recognizing that women need state mandated infrastructure to access the law, the institution of Protection Officers was created to record all reported instances of domestic violence, to enable the woman to access the courts by assisting in drafting applications and to assist the courts in collecting evidence and in enforcing the orders.

Over five years of functioning of the PWDVA has shown that it has been a success and is one of the primary tools being used by women facing domestic violence in India.

Ever since the law came in existence, the Lawyers Collective has been doing Monitoring and Evaluation of the law in coordination with International Center for Research on Women (ICRW), Centre for Budget and Governance Accountability (CBGA) and other civil society organizations.

The latest of the reports- “Staying Alive, 5th Monitoring and Evaluation Report on the Protection of Women From Domestic Violence Act 2005” (2012) was released on 30th January 2012 at the hands of Hon’ble Supreme Court Judge, Justice Altamas Kabir. As the report shows, there are many problems with its implementation, mainly because of the inaction of the State in appointing Protection officers with full time charge yet statistics of court orders indicate that the Act is being widely used.

However, one major problem identified by the Monitoring and Evaluation Report is that Protection Officers have been found to be doing extensive pre litigation counselling going to the extent of calling the respondents and attempting a settlement or compromise. This is completely against the requirement of the Act and compromises their position as officers of the court and can put them in conflict of interest situations.

The recommendations of the Monitoring and Evaluation Report are that Protection Officers must stop pre litigation counselling and must refer matters to Service Providers on the request of the aggrieved woman and if she wants no such counselling assist her to file an application in court.

Domestic Violence Act – Pakistan

The news that our neighbour Pakistan has enacted the Domestic Violence (Prevention and Protection) Act, 2012 is highly welcoming. It is a well drafted Act, showing a commitment to protect women from domestic violence. The very fact that it comes from an Islamic country, should silence many in our country who argue that the India DV Act does not apply to Muslim woman and that is goes against Islamic jurisprudence.

Some of the similarities and differences may be noticed. Like our Act, it can be activated only by woman and children but unlike our Act it can also be activated by “vulnerable persons” of either gender that is vulnerable due to old age, mental or physical disability or for any other reason. This is a welcome recognition of the need to protect the disabled and provide remedies for the violence which they face.

It explicitly states that an application can be filed against a person of any gender who has caused the violence, meaning thereby that women can also be respondents. This is also the law in India now; with the Hon’ble Supreme Court in Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade clarifying that woman can be respondents in an application under the PWDVA.

Domestic violence is defined in the broadest possible terms to include physical, psychological and emotional violence. Insults, ridicule, blaming a woman of infidelity are all acts of emotional violence while stalking and harassment come under the definition of psychological and emotional violence.

Civic remedies are provided for criminal acts such as using criminal force and wrongful confinement, making it at the same time clear that the law is in addition to and not in derogation of any other law, including all criminal laws.

The right to reside in the shared household is declared to exist and unlawful eviction is prevented.

Protection orders and custody orders can all be passed by the courts in one single application for preventing domestic violence, making it unnecessary to approach multiple courts.

An interesting addition is the creation of the “Protection Committee” a multi agency body consisting of a medical doctor, a psychologist /psycho-social worker and an official appointed by the Court, a female police officer not below the rank of Sub-Inspector and two women members of civil society and the Protection Officer to respond to every case of domestic violence. The Protection officer is a full time government servant. Whereas the Indian Act visualizes a similar structure, this is being done by administrative guidelines and there is no compulsion on the State to appoint full time government servants as Protection officers.

This is significant advance over the Indian Act and shows commitment to the cause of ending violence against women. A government wanting to end violence must put its money where its mouth is and cannot be heard to say it has no money to create a cadre of Protection officers. The power and functions of the Protection Committee and the Protection officers are well laid out, much like the Indian Act, the difference being they are set out in the Act and not in the rules as in the Indian law giving them an unmistakable statutory basis.

The Pakistan Act borrows much from the Indian Act and it is time for the Indian Act to borrow from the Pakistan Act.

As we move into the Sixth year of the implementation of the PWDVA in India, it is time to ensure that all Protection officers are full-fledged government servants and gazetted officers with full time charge under the law to prevent and protect from domestic violence. Every individual woman has a right to get relief from domestic violence and that requires state mandated infrastructure to access the law.

The State must also commit itself to monitor and evaluate the law on an annual basis to ensure implementation and to learn from the process what needs to change. The Monitoring and Evaluation exercise is also a very valuable toll of mapping patterns of violence against women with a view of addressing the cause.

Years of working with the Dowry Prohibition Act, 1961 and now the Pre- Conception and Pre-Natal Diagnostics Techniques Act, 1994 have shown that the giving and taking of dowry has not ended and the birth of a girl child is prevented. The reason is we address the symptoms not the cause. It is time to cut at the root of the cause, an unequal society, where property and position resulting in power is in the hands of men. Vulnerability, not biological but social, economic and political vulnerability of women has not been addressed.

Meanwhile we can celebrate our successes. The success of the Protection of Women from Domestic Violence Act, 2005 has been that it has completely bypassed the police as gateways to justice and has empowered the affected woman to take control of her life without the help of the police as mediators of social crime.

No amount of police reform will result in a sensitized police accustomed to the “law and order” role of policing. One solution that we found in the Act is to bypass the police and make them redundant to access to justice, leaving them to enter when their “enforcement” function is required.

Indira Jaising is the Additional Solicitor General of India and the Executive Director of Lawyers Collective.

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