By Aratrika Choudhuri, WBNUJS, Kolkata.
As the second part of a two-article series on the Protection of Women from Domestic Violence Act, this article seeks to outline key solutions and enlist recommendations, that would ameliorate the shortcomings in the provisions and implementation of the Act (which have been investigated in an earlier article https://lexquest.in/protection-of-women-from-domestic-violence-act-a-critical-exegesis/). These recommendations focus primarily on legal considerations that would aid victims of such violence to fully effectuate their rights under the Act.
Although the enlightened reformists initiated the first steps towards uplifting women during British rule, a collective social consciousness against the oppression of women was given constitutional sanction by the drafting committee of the Constituent Assembly. However, for more than twenty years after independence, the Court viewed its role passively, until the landmark case of Gandhi v. India, where the Court noted that Article 21, which guarantees the right to life, extends beyond mere freedom from physical restraint and rather encompasses a plethora of rights that contribute to individuality. This was meant to include gender equality, in Vishaka v. State of Rajasthan and the woman’s right to work and control over finances in Olga Tellis v. Bombay Municipal Corporation.
Domestic violence legislation in India has historically been directed toward dowry related violence, thereby excluding myriad cases involving domestic violence for reasons unrelated to dowry demands. The Dowry Prohibition Act, 1961 penalizes demands for dowry by imposing punishment such as imprisonment for not less than six months (under Section 4) and fines amounting to fifteen thousand rupees or more (under Section 3). Section 406 of the I.P.C. is applied in investigation of stridhan recovery from the husband and his family. Until recently, two laws predominantly addressed domestic violence. Section 304B of the Indian Penal Code (I.P.C.), also known as the Anti-Dowry statute, criminalizes the husband or relatives of the husband when his wife dies under abnormal circumstances within seven years of a marriage and it is shown that she was “subjected to cruelty or harassment by her husband” or his relatives in connection with dowry demands while Section 498A, known as the Anti-Cruelty statute, inserted by a 1983 amendment, targets acts of “extreme cruelty” to women in response to dowry demands that are likely to drive a woman to commit suicide or cause “grave injury”. This implied that only very severe acts of domestic violence were taken into consideration and not the overall mistreatment of women in the household, whether physical, sexual, emotional, or economic.
Cognizant of these gaps in legislation, India passed The Protection of Women from Domestic Violence Act (Act) on 13th September 2005, the culmination of a unified effort by the Lawyers Collective and other women’s rights groups, which became effective on October 26, 2006, for guaranteeing protection of the constitutional rights of women who are victims. This invocation of the Constitution is significant, for it recognizes women’s fundamental human rights rather than mere cognizance of a criminal act perpetrated against a particular woman, and acknowledges the intermingling of the personal domain with the political, that has often been resisted by legislators and judiciary as “obtrusive intrusion” – as the Delhi High Court infamously observed in Harvinder Kaur v. Harmander Singh that “the introduction of Constitutional Law in the home is…like introducing a bull in a china shop.” Notably, the national-level colloquium held in 1999 on domestic violence was an important milestone in the enactment of this Act, for it underscored the violence within the framework of hitherto ignored intimate relationships in a situation of dependency, that rendered access to legal aid difficult. Additionally, the groups drafting the Act determined that the remedy should be civil rather than criminal and run parallel to the latter to ensure that women who are not ready to leave their spouses are still able to seek protection from domestic violence. These key milestones in the evolution of the PWDVA are essential to understanding its objectives and for ensuring its full fruition.
Both the PWDVA and Section 498A of the I.P.C. have been criticized for encouraging false complaints and for reifying the notion that women can only be victims, rather than perpetrators, of violence. It is imperative to have a mechanism built into the PWDVA and Section 498A to provide some sort of deterrence for false complaints, while encouraging genuine ones, as Section 340 of the Cr.P.C. provides, in conjunction with Section 191-193 of the I.P.C.
Retrospective operation of the PWDVA is clearly intended in civil law terms, using the rule of construction, “verbis standum ubi nalla ambiguitas” and reading the words ‘who is’ or ‘has been’ in clause (a), ‘who live or have’ in clause (f), ‘who is’ or ‘has been’ in clause (q) of Section 2. Significantly, the Supreme Court held in V. D. Bhanot v. Savita Bhanot that the past conduct of the parties, even if prior to the Act coming into effect, was relevant for passing orders under Sections 18, 19 and 20 of the Act, thus recognizing that a woman dispossessed of her Shared Household at any time in the past continues to suffer the effects of that dispossession. However, the application of Section 29(2) of the Limitation Act 1963 to the PWDVA on reading it along with Section 36, in Revanasiddeshwara, v. Shylaja, is detrimental for domestic violence victims who take long periods of time to make a conscious choice to seek remedies and may not be willing or able to file complaints within the limitation period. This inherent contradiction between the two laws must be remedied.
Women’s rights advocates argue that the unwillingness and lack of training of the local police and Protection Officers regarding the Act’s requirements and its purpose leads to the re-victimization of women, as the police either fail to respond to calls for help or disregard their abuse as private matters. Guidelines must be framed for the qualifications of Protection Officers, who are not imparted adequate sensitivity training, thus creating potential for abuse of the machinery accompanied by the delayed processing of protection and maintenance orders. As required by the Act, proceedings must be completed by Courts within 60 days. Even the provision of one protection officer per magistrate may prove to be insufficient in the future given the significant amount of responsibility each protection officer is supposed to undertake. For example, in the Northwest District of Delhi, two protection officers have been appointed, which will likely prove inadequate given that the Northwest District’s population is over 1,412,476 citizens and has the highest rates of domestic violence against women in Delhi.
It is essential for the police, protection officers, service providers, magistrate judges, and government officials to engage in a multi-stakeholder partnership and receive gender-sensitization training which would aid reduction of inherent gender bias in the registration of complaints and decisions of the Judiciary. Given the very deep embossment of patriarchal notions in the Indian societal mindset, multiple training sessions, plays, drama, debates must be conducted regularly, with continual evaluative mechanisms to improve the quality of such training.
Even though the duties under Section 11 may not be mandatory, the Central Government must use televisions and radios to ensure widest outreach even in the rural areas, and endorse a scheme of reimbursement to the NGOs who undertake expenses for community mobilization.
The deficiency in the number of available legal counsel results in a lack of free or low cost legal representation for victims of domestic violence. To remedy this, the Indian government could require all attorneys to work a certain number of hours per year on pro bono cases and/or provide incentives in the form of student loan forgiveness or subsidies for lawyers working predominately in the public interest field.
Courts must distinguish the rights of women under the PWDVA from their status under personal laws and ensure that concerns over the application of personal laws do not trump reliefs for women under the PWDVA.
The role of service providers must be emphasized. Due to the lack of shelters, prohibition of children from accompanying the victim and strong social stigma against women living outside the marital home, shelters are rarely utilized by women in abusive relationships, but they must be built for those victims who do choose to leave their homes, increasing their willingness to leave abusive relationships. A comprehensive list of service providers will help victims, NGOs, grassroots organizations and other key players under the Act by allowing coordination of services to provide job skills training, shelter and counseling to the victims and would connect a victim with service providers in her neighborhood or district, rather than having to travel to the few well-known NGOs.
On analyzing cases related to these spheres and on reviewing the findings of the Lawyers Collective Report, the author finds that it is essential to immediately recognize the shortcomings imbricate in the Act and remedy them. The recommendations enlisted in this article would aid in securing this objective, as they recognize the need to tackle the problem of domestic violence with a broad socio-legal agenda instead of merely granting new rights to women without proper enforcement.