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Redefining shared spaces

The Protection from Domestic Violence Bill seeks to protect women from abuse within the home. Yet, to address this issue on a comprehensive level, the Bill needs to take into account the concept of a shared household, says SHEILA JAYAPRAKASH.

A search for hope and a promise ...

REKHA had been married for 20 years and had a 16-year-old daughter when she was informed by one of her husband's colleagues about his affair with another woman. Her husband had been physically abusive throughout her marriage. Rekha had run the home with money she earned from private tuitions. When she confronted her husband he became violent. She and her daughter were thrown out of the house. Rekha gave a complaint before the nearest All Women's Police Station and with their help took out one suitcase of clothes and left the house. She was neither able to enter the matrimonial home again nor did she ever get anything else that belonged to her from the house. She filed a petition for divorce and maintenance which are still pending, while her husband lives in the matrimonial home with his paramour. Rekha's case is not an isolated one; it can be multiplied many times over. The perceived safe space of home is the most violent one for women like her.

In 1999 the Women's Movement in India, spearheaded by the Lawyers Collective, Delhi, began lobbying for a law to prevent domestic violence. Drawing from the experiences of women who had been subjected to abuse, a law was drafted to address all dimensions of domestic violence.

There were three important factors that this law had to address to prevent violence within the home. It had to recognise that the place of residence, called the "shared household" is the site of abuse and unequal power relations. As neither society nor family provide a safety net and shelter for women in such situations, the woman should have the right to reside in the shared household. This concept of a shared household would then include daughters, widows, mothers and women in bigamous marriages and in common law relationships. The court should have the power to pass protection orders, restrain the abuser from entering the shared household, order repossession and grant emergency monetary relief. So, any law that addresses domestic violence must prevent it, protect the right of the woman to live in the shared household and make provision for maintenance of the woman.

This law cannot be construed as a marriage law. It does not seek to define rights within the marriage or rights at the break-up of the matrimonial tie. Its mandate is to provide the woman with a safe space, free from violence, to make her decisions. Domestic violence is one of the tools used to force a woman out of the home, giving up her rights to property and sometimes her children. None of our matrimonial laws provide for the sharing of matrimonial assets, maintenance proceedings are long drawn out and execution of maintenance orders is even harder. Women are forced to leave the home with empty hands or suffer the abuse in silence. It is this situation that the law must address.

The Indian government has recognised and accepted that violence exists within the family. On December 11 last year, the Ministry of Human Resources Development printed and circulated "The Protection from Domestic Violence Bill 133 of 2001". It was a welcome step but the Bill falls short of providing effective and meaningful steps to deal with domestic violence.

The definition of domestic violence in the Bill is "habitual" abuse which makes the life of the aggrieved person "miserable" and has a residuary clause "otherwise injures or harms" the aggrieved person. The definition does not list specific acts of violence and leaves the interpretation of the cause of action to the discretion of the Judge and so it becomes subject to the judicial officer's perception of violence. The definition is not in keeping with the accepted international definition of violence as seen in The Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) and excludes sexual, economic and child abuse. Further, the Bill gives the abuser the benefit of the plea of self-defence.

The Bill ignores the concept of shared household. No existing law gives the woman an absolute right of residence in the home and if this Bill leaves this aspect untouched it fails to address the root cause of the vulnerability of women. Another omission is the failure to provide for restraining or repossession orders. Violation of an order of protection entails a term of imprisonment for one year or a fine of Rs. 20,000/-. In such a situation the woman would have to go back to the court to enforce this order, whereas, a composite order with a suspended warrant would make it more effective for implementation.

While important aspects to prevent violence have been overlooked the Bill provides for mandatory counselling for the victim and for an "amicable settlement". No one could object to this but given the track record of the existing mandate of the Family Counselling Centres, Family Courts and Lok Adalats, where reconciliation is treated as synonymous with "preservation of the family unit at all costs" and "adjustment" on the part of the woman even if it means that she has to live with violence, this will work against the woman. Mandatory counselling is necessary for the abuser. The Bill makes provision for Protection Officers and for help from NGOs, referred to as Service Providers. The Bill gives impunity to Protection Officers for acts done in good faith. This impunity should be extended to the Service Providers also.

It must be understood that The Domestic Violence Act is meant to be a short-term measure for women in violent and abusive situations. It does not contemplate transfer of rights in property. Long term-rights will have to be worked out under the existing laws. This Act is to be in addition to and not in derogation of other family laws.

If The Protection from Domestic Violence Bill is to make any difference in the lives of women like Rekha it must take effective steps to prevent violence within the home because domestic violence is a violation of a woman's human rights. When rights are violated in the public sphere the State takes active remedial steps but when the violations are within the private sphere the State turns a blind eye. The definition of violence and shared household must be clearly spelled out. The relief granted must prevent further violence. The Courts must be easily accessible with simple procedures. The Bill lacks these necessary provisions and needs reconsideration and substantial review if it is to address domestic violence in a meaningful way. In its present form it offers abused women the choice between a home with violence or homelessness.

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