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Freedom from violence in the family still remains a distant dream for women

by Indira Jaising, 8 November 2007

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Indian Express, October 26, 2007

Family against woman

A year after the law to protect women from domestic violence was enacted, it continues to be defeated by social prejudice and blindspots

October 26 marks the first anniversary of the Protection of Women from Domestic Violence Act. The law was conceived as a civil law as distinct from the existing criminal law: Section 498A IPC. It was often said that criminal law had no space for settlement of disputes and could give no relief beyond a conviction. It was to meet this need that the new law was passed.

It provided for the right to residence in the shared household, the right to protection orders, gave power to courts to restrain alienation of assets, mandated return of stridhan and other significant reliefs. It defines violence in all its dimensions, from the physical to the sexual and economic. This definition was taken from the UN Model Code on domestic violence and from the Convention on the Elimination of All Forms of Violence Against Women, to which India is a party. It applies not only to married women but also women in live-in relationships, daughters/mothers facing violence in domestic relationships.

One year is an appropriate time to evaluate the functioning of a law. However, there are no systems to do this on a systematic basis since there are no computerised data bases of orders and judgments. Given this, the Lawyers Collective, which was largely involved with this law in its formative stages, undertook the task of evaluating enforcement, using available data. The chief justice of India facilitated the collection of data from different high courts. Our report, ‘Staying Alive’, is based on this.

The report shows that the law’s main users are women in matrimonial relationships. A few widows have been able to prevent dispossession by using the law, and some young girls have prevented forcible marriages by fathers. The major breakthrough the law achieved was the declaration of the right to reside in the shared household. Surprisingly, it took independent India 60 years to ensure this right. The law makes a clear distinction between the ownership of the shared household and the right to reside in it. What the law does is to grant the right to reside and not to be dispossessed, except by authority of law. It thus prevents forcible dispossession.

This provision suffered a major setback at the hands of the judiciary. The Supreme Court, even before the ink on the Act was dry, declared in a judgment that a woman could claim this right only in relation to a household owned/ rented by her husband. This means that even if her husband lives with his parents and she has her matrimonial residence there, she cannot claim right to residence there. The judgment not only overlooks the law itself, it also overlooks the existing social reality of the joint family, which continues to be the predominant pattern. The report documents how several courts have been refusing relief to women based on this judgment. It demonstrates that in India women have lesser protection than tenants, who cannot be evicted except by procedure established by law.

There have been major protests around this law. Organisations to ‘Save the Indian Family’ have been formed; women who campaign for the law are being told that they are ‘frustrated’ and are ‘home breakers’. It is obvious that respect for human rights of women in domestic relationships — the premise on which the law is based — is not something intrinsic to the ‘Indian Family’. The right to live with dignity is not conceded to women in the private domain. These attitudes predominate at all levels, particularly in the upper classes, among bureaucrats and decision-makers. They have determined the terms of this debate ignoring the Constitution’s egalitarian values. It is therefore not surprising that the law is not implemented, even when the conferment of rights is explicit in letter and spirit. One of the major recommendations of the ‘Staying Alive’ report is that the Supreme Court judgment be reviewed, to restore the right to residence.

The number of cases filed in different states varies greatly. If 3,440 cases were filed in Rajasthan, Haryana had only 235 cases till July 2007. Manipur, Meghalaya, Nagaland and Arunachal Pradesh have none in the same period. Some states have figures varying from 5 to 65. These figures may or may not reflect levels of violence in the state against women. They may reflect a combination of higher levels of violence combined with greater awareness of the law. Certainly, in Rajasthan, that seems to be the case. The Northeast continues to use tribal customary forums and has not used the law. No data is available for UP, since the high court there did not send the information.

The law envisages the appointment of protection officers on a full-time basis to record incidents and support women in distress. Interestingly Rajasthan, which has the highest number of cases, has not made such appointments and continues to rely on the police to perform this function, defeating, to a large extent, the need for a multi-agency response to stop violence. Other states have simply designated health workers as protection officers. Most states have appointed protection officers only at the district level, leaving a big gap between the users of the law and the courts. When asked to explain this shortcoming, states have claimed there is no budget for this.

Middle and upper class women continue to be the main users of the law. Working class women are not using it or are unable to access privatised services or lawyers. Also, every state has reported dowry as a major factor in the breakdown of relationships.

By far the most interesting example comes from Andhra which, early on, put in place multiple agencies to activate the law. The police have been sensitised to inform women of their rights. Protection officers work full-time to record complaints of violence and file applications. Legal aid is being given invariably. Why has this not happened in other states? Difficult to say, but clearly Andhra has a better system of management of case work and documents.

All said and done, freedom from violence in the private domain still remains a distant dream for women in domestic relationships, a year after this revolutionary law came into the statute books.

The writer is director, Lawyers Collective, Womens’ Rights Initiative