The Delhi High Court ruled recently that a woman can also be held liable under the Protection of Women from Domestic Violence Act 2005. This the court did on the basis of the interpretation that ‘relatives' included not only male but also female members of a family. The absence of such a provision, it felt, could encourage men to instigate women members of a family to commit violence.
The Act came about in response to decade-long pressure from international organisations and activists in India. But five years later, despite noble intentions, it remains an unviable proposition. Little thinking has gone into understanding the context in which spousal abuse overwhelmingly occurs in India. The ground realities have been ignored and the implementation aspects left woolly and unprovided for.
A senior lawyer in the Supreme Court, K.K. Rai, who is conversant with matrimonial cases, says: “The law just does not take into account the realities of the joint family system where female members of the family heap both physical and emotional aggression against a woman. We need guidelines and mechanisms which ensure continuance of the joint family ethos, yet cushion the woman against violence.”
Whereas domestic violence takes place in all social, economic and cultural settings worldwide, in India the difference is that families are conditioned to tolerate, allow, even rationalise domestic violence. Most of the violence takes place inside homes which should offer the woman maximum security. The 2005 law focusses on the prohibition of marital aggression, the issue of protection and maintenance orders against husbands and partners who abuse a woman emotionally, physically or economically. This sounds fine on paper, but a one-size-fits-all approach ignores women who need such protection the most.
The National Family Health Survey-3 (NFHS) shows that the prevalence of violence increases sharply in the absence of education and reduces by half in the case of women who have acquired 10 years of schooling. Both physical and sexual violence are highest among women in the poorest wealth quintile, and it declines steadily with increasing wealth. Given the scarcity of resources, the legislation should have initially focussed on the conditions in which illiterate and uneducated women reside in joint families. Instead, it has painted the subject with one broad brush, seeking to rely on the efficiency of the courts to decide such matters within 60 days.
Administratively, the Act requires each State government to appoint protection officers, register service providers and notify medical facilities for the implementation of the Act. While the Ministry of Women and Child Development and the Ministry of Home Affairs have issued advisories to State governments, with the exception of West Bengal and Delhi no State is known to have appointed independent protection officers even five years hence. Most States have fobbed off the requirement by giving “additional” responsibility to existing functionaries. Rajasthan, a high-prevalence State for domestic violence, has entrusted the already overburdened anganwadi workers who are striving to ensure the supply of nutrition to infants, children and lactating mothers, with the responsibility.
In Delhi where at least an attempt has been made to recruit independent protection officers, Yasmin Khan, a member of the State Women's Commission, laments that it is just not possible to appoint dedicated staff on a salary of Rs. 15,000 a month. “How can a newly recruited MSW [degree-holder], even if she agrees to join, visit homes, draw up reports, seek protection orders from magistrates, create and maintain legal documentation and pursue court directions when she has no help, no transport, no office and no training?”
Tabling figures regarding protection orders issued so far, Parliament was recently given information only in respect of a handful of States and Union Territories. Even here, nothing is known about what the majority of them are doing. The numbers, which have not crossed four figures in five years, are too sparse to inspire confidence. Looking to the findings of country-wide surveys that have shown that over 40 per cent of all married women had experienced physical or sexual violence, the Act does not touch even the fringe of the problem.
The experience of Rajasthan is vividly described by Kavita Srivastava, who represents the People's Union for Civil Liberties and who has been pursuing women's causes. According to her, while the protection officers are in acute need of legal training, the magistrates before whom the cases are presented also need orientation. She feels that scant regard is paid to the 60-day limit, and domestic violence matters are treated in a most routine manner — thus defeating the purpose for which the Act was made. Every case decided against the husband automatically goes up in appeal, and it becomes an unending story. Lawyers get busy converting practically all domestic violence cases into maintenance matters, in the process missing the point of preventing immediate assault and violence against the woman. In some instances, magistrates have issued contempt orders against the very protection officers who stand as a bridge between the woman and her aggressor. In such a climate, how can women expect immediate and sustained protection?
Unlike in the U.K. and the U.S., domestic violence has not been on the radar of the political executive, politicians in general, the police or the media in India. Such cases would seem to lack the sensationalism or ghoulish appeal of murder or rape cases. Repeated surveys have shown that in Indian society, both men and women believe that domestic violence can be tolerated in certain circumstances. These include being rude to the in-laws, not caring for children, preparing food badly or going out of the house without permission. If the vast majority of people accept that this is cause enough for domestic violence, it is doubtful if even the most rigorous protection officer would ever succeed in making inroads into a battered wife's household, leave alone haul up the husband before a district court.
The 2005 Act is impractical and consequently non-implementable in favour of those that need protection the most. Looking at the size of the country and the problem, it would be better to have a law that targets the poorest and the most uneducated and illiterate among women to start with, at least until the mechanisms to implement this nuclear family-lawyer dominated law are in place, if that is what the legislature wants. Until then, the plight of the poorest women — both rural and urban — who get repeatedly thrown out of their homes in the dead of night should be confronted. In the full knowledge of neighbours, thousands of the really poor and uneducated are repeatedly subjected to slapping, kicking, being dragged by their hair; twisted by the arm, forced to have sexual intercourse, even threatened with knives and household implements, as NFHS-3 surveys have vividly shown.
There is no use having a law that is meant for the whole country when there is no one to implement it. Until full-time and properly oriented protection officers are recruited — which seems to be an unattainable target now — a more practical way would be to prescribe summary disposal of cases through weekly courts organised at the tehsil or ward level. The protection officer's responsibility should be confined to giving a report before a mobile magistrate citing two witnesses from the neighbourhood. For every case where a protection order is issued, the protection officer and the witnesses should be compensated in recognition of having successfully brought forward the case for intervention. At the village level, the panchayats as well as the health, education and social welfare fieldworkers and non-governmental organisations could be permitted to voluntarily take on the role of protection officials, to be compensated for every case that ends in favour of a battered woman.
The U.K. took several years to train its police, its health workers and its judicial magistrates on handling the domestic violence law. Such a process has hardly happened in India. The mindset of those who deal which domestic violence has first to be changed before the law can subserve the interests of those for whom it was primarily intended. Until then, it is essential to protect those who have no voice and whose situation is well known to the entire neighbourhood. If the National Rural Health Mission's Accredited Social Health Activists can be compensated for accompanying a pregnant woman to hospital, why not those who accompany a battered woman and present her case before a magistrate? A separate section in the law that addresses the special needs of the most vulnerable would help change the focus of the Domestic Violence Act in their favour.
(Shailaja Chandra is a former Chief Secretary of Delhi, and Secretary to the Government of India. She was the first Executive Director of the National Population Stabilisation Fund set up by the Government of India.)