Dreamland Delusions

The new Domestic Violence Act (DVA) has made some significant improvementsover the existing laws but it is not as if prior to this Act civil laws did notexist to protect women’s rights in the family. Astute and determined lawyershave successfully pleaded and got adequate relief for their female clients underthe existing matrimonial, civil and criminal laws as the article by Flavia Agnesdemonstrates. But, the tardiness of court procedures and judicial bias oftenresulted in miscarriage of justice.

The biggest shortcoming of this Act is its overweening ambition and lack ofsense of proportion. Ordinarily, when handling such deep rooted problems sincereregimes start their interventions with more focused and manageable victimisedgroups; they set themselves modest goals for dealing with blatant and clear cutcases of abuse and bring those worst offenders to swift justice. For example,they target their laws and welfare measures at those women who have sufferedsevere physical injuries in their homes and are commonly recognised in theircommunities as abused wives.

But what the framers of this Act have done is to anticipate allpossible ways that the law could protect all aggrieved females from anyand all sorts of harm and humiliation. At the same time they have put alltheir faith in all women being essentially good and honest victims whilethey view the government and the NGO networks as being capable of righting allkinds of wrongs, and in using all the claims of all women to getthem justice, without worrying about proof of claims, or the current state ofthe society and of the government machinery. It is as if the framers of this lawlive in a Dreamland where wishful thinking is all that is needed to protectwomen from all kinds of real and imagined harm. In the process we are likely tosee this law make a mockery of itself.

The Positive Aspects

A major plus point of this Act is that it acknowledges domestic violence as aproblem in itself rather than keeping it forcibly tied to the pallu ofanti dowry laws. The previous law carried an absurd assumption that domesticviolence was invariably linked to dowry demands and hence a new and exoticvariety of crime called "dowry death" was added to the statute book.Consequently, lawyers, police, and even some women’s organizations encouragedwomen to register violence cases under the Anti Dowry Act even when there was nobasis to the allegations of dowry demands because they felt stringent provisionsof the anti dowry law made it easier for them to press charges and get asympathetic hearing. Thus our courts came to be filled with cases withexaggerated or patently false charges of dowry demand related cruelty, whileother dimensions of cruelty got pushed under the carpet. This new law freeswomen from the need to make bogus dowry related charges in order for their abuseto be taken seriously. This may enable us to know the real face of domesticviolence in India and dispel the simplistic notion that dowry is the sole ormain cause of violence against women.

The DVA provides for comprehensive and speedy relief within a set time frame.[See: Provisions For Speedy Relief, linked from below thepage]. So far the remedies available to a victim of domestic violence in thecivil courts and criminal courts vide Section 498A of the Indian PenalCode (IPC) were limited. They could file for divorce under civil law and or getthe abusive spouse arrested and tried for cruelty under Section 498A ofthe Indian Penal Code.

Thus the earlier laws hinged mainly on threatening the use of penalprovisions to get the accused arrested and jailed on registration of a complaintin order to negotiate relief with an allegedly abusive spouse. Many women learntto use the law to arm-twist their husbands to agree to financial settlementsbefore divorce. The new Act moves in the direction of providing positiveprotection of women’s civil and matrimonial rights, without using the threatof imprisonment under criminal laws as the first step towards seekingredress, as was the case with Section 498A. Under this law, imprisonment comesas a second stage remedy.

Earlier, victimised women found it hard to get emergency relief unless a verydetermined lawyer was willing to walk the extra mile and use the skillfultechniques described by Flavia Agnes elsewhere. But even in those cases they hadto combine legal means with extra-legal ones. Since court proceedings areinvariably protracted, the victim had to often live at the mercy of the abuseror walk out of the house.

A major shortcoming of earlier laws against domestic violence was that theyassumed women are abused only in their roles as wives and daughters-in-law. Thenew Act takes a more balanced and nuanced view of domestic abuse by includingdaughters, sisters, mothers, mothersin- law, sisters-in-law and evengrandmothers in its purview. As the story of Pratima Singh in this issue,illustrates, a woman can also be brutally victimised by her own father. Manywomen are also victimised by their sons and daughters-in-law, especially ifwidowed.

This new Act provides for swift, time bound and comprehensive civil remediesfor maintenance, right to the matrimonial home, protection against violence aswell as custody of children. It would have marked a significant improvement overthe earlier civil remedies available to abused women had the framers of this lawbeen more focused, realistic and balanced in their approach. However, it hasdone very little to allay the fears of all those who have witnessed widespreadabuse and misuse of the existing laws against domestic violence. If anything, ithas added more reasons for concern and alarm.

Beneficiaries of this Law

Section 2(a) of the Act enables a woman to seek protection against anyadult male family member who has been in a domestic relationship with her. Thisincludes her own father, brother, her husband or male partner as well as hismale and female relatives. Thus, a father-in-law, mother-in-law, or evensiblings of the husband and other relatives can be proceeded against even ifthey are not living under the same roof.

It also covers sisters, widows, mothers, daughters, women in relationships ofcohabitation, single women, adopted children, etc. The types of offenses thatwould make fathers or brothers subject to the Act have been expanded in waysthat make it much easier for the women to enter a case under DVA. While thismarks an improvement, it has the potential to create very conflictingsituations. For example, what if a mother-in-law alleges abuse by herdaughter-in-law who in turn seeks an injunction against her mother-in-law? Giventhat battles between women in the family tend to be no less ferocious than thosebetween spouses, this is not an unlikely scenario.

Under this law children can also file a case against a parent or parents whoare tormenting or torturing them physically, mentally, or economically. In casethe child is not in a position to approach the court on his/her own, "anyother person" can file a complaint on behalf of the child. The law does notspecify that a person has to be closely related or well known to the child inorder to qualify for filing a complaint on the child’s behalf.

However, men are not entitled to seek relief under this Act, which is basedon the assumption that only women and children suffer domestic abuse. Thus anold father-in law who may suffer abuse, taunts and even violence at the hands ofhis son or daughter-in-law cannot get relief under this law while a mother-inlaw supposedly can.

Definition of Abuse

Section 3 of the law defines "domestic violence" as any act/conduct/omission/commission that harms or injures or has the potential to harmor injure a woman or child. This law considers physical, sexual, emotional,verbal, psychological, and economic abuse or threats of violence and abuse asequally serious offences. The law lists out in detail different forms ofviolence faced by women so that interpretation of what constitutes violence isnot left solely to the discretion of the judges. Even a single act of commissionor omission may constitute domestic violence. This has been done with theintention that women should not be required to suffer a prolonged period ofabuse before the law takes them seriously.

The court may conclude that an offence has been committed by the accused uponthe sole testimony of the woman alleging abuse. Given that lying in court hasnever been taken seriously enough to invoke punishment, laws which presume guilteven before the trial has begun are prone to great misuse.

Physical Abuse is defined as any act or conduct which is of such anature as to cause bodily pain, harm, or danger to life, limb, or health, or anact that impairs the health or development of the person aggrieved, or thatincludes assault, criminal intimidation and criminal force.

Sexual Abuse is any "conduct of a sexual nature that abuses,humiliates, degrades, or otherwise violates the dignity of woman." The lawalso covers instances where a woman is forced to have sexual intercourse withher husband against her will.

While it is important to respect a women’s right to say ‘No’ to sexeven in a marriage, it is not easy to assess whether a particular sexual act isagainst a woman’s will or was with her consent, in case of married couplesespecially if there are no signs of struggle or resistance on the woman’sbody.

Verbal and Emotional Abuse have been defined as "insults, ridicule,humiliation, name-calling,especially with regard to not having a child or a malechild and; repeated threats to cause physical pain to any person in whom theaggrieved person is interested." So, for example, if the abuser were tothreaten the children, or relatives of the woman, this will also be consideredan offence under this law.

However, putting verbal taunts or abuse at par with physical violence amountsto very shoddy thinking. For example, calling someone a "moron" cannot betreated at par with beating up a woman.

Economic Abuse: Even under existing laws, a woman is entitled to seekmaintenance for herself and her children from her husband. However, under thenew law, economic deprivation or denial of financial resources to which theaggrieved woman or child is entitled under law or custom, or which the personaggrieved requires out of necessity, now falls under the category of economicabuse. A husband would be held guilty of economic abuse if he were to sell oruse her stridhan (dowry), her jewelry and/or any other property jointly orseparately held by the wife. But the law does not specify what happens if acertain asset has been alienated with the written consent of the wife but latershe makes a case that it was done against her will.

Most important of all, under this provision a man cannot dispose of householdassets, nor can he alienate her assets, nor for that matter any other property,in which the aggrieved person has an interest or entitlement by virtue of thedomestic relationship. Even a recent live-in partner can prevent a man fromselling his own property for his business requirements. This clause too islikely to cause havoc, unless used judiciously.

Live-In Relationships

The most important new element in this law is that it recognises live-inrelationships and offers the same degree of protection to a woman who is livingwith a man without marriage. According to section 2(g), any relationship betweentwo persons who live, or have at any point of time lived together in a sharedhousehold when they are related by marriage, consanguinity, or through arelationship similar to marriage, or are family members living in a jointfamily, is considered a "domestic relationship". It also protects women infraudulent or bigamous marriages, or in marriages considered invalid by law.However, the law does not make explicit whether it also applies to same sexmarriages or gay relationships.

The wide ranging definition of "domestic relationship" may bring theneeded relief for those women whose husbands dupe them into cohabitation withoutgoing through proper ceremonies and then dump them at will on the grounds thattheirs was not a valid marriage. But it has cast its net so wide that it leavesenormous scope for flimsy claims with a view to harassment and blackmail.

The Act does not specify how long a couple has to have lived in the sharedhousehold in order for a woman to claim benefit under the Act. Thus, as per theletter of this law, a woman who may have lived with a man for two or threemonths without being married to him can at any point seek relief under this lawat par with a legally wedded wife. This amounts to making a mockery of lawsagainst bigamy. The habitation rights of livein partners in the same house incase of already married men cannot be protected in this way without seriousdamage to the rights of legally married wives and their children. It isperfectly legitimate to protect a woman from violence and punish a man forinflicting it on her, whether or not she is married to the man. However, to giveher the right to claim maintenance and get injunctions barring her male partners’entry into his own house is going a bit too far, especially if he already has awife and children living in that house.

No Eviction or Harassment

An important addition to the law ensures that an aggrieved wife or partnerwho takes recourse to the law, and gets a "protection order" or aninjunction barring the entry of the husband into the house, cannot be harassedfor doing so. Thus, if a man is accused of any of the above forms of violence,he cannot, during the pending disposal of the case prohibit/ restrict the wife’sor partner’s continued access to resources or facilities to which she isentitled by virtue of the domestic relationship, including access to the sharedhousehold. If he does so he invites a fine of Rs 20,000 and/or a jail term of upto one year.

Section 17 of the law, which gives all married women or femalepartners in a domestic relationship the right to reside in a home that is knownin legal terms as the ‘shared household’, applies whether or not she has anylegal right, title or beneficial interest in the same.

Sections 18-23 provide a large number of avenues for an abused womanto get relief. Courts are obliged to give her Protection Orders, ResidenceOrders, Monetary Relief, custody of her children, Compensation Order andInterim/ ex parte Orders.

The law provides that if an abused woman so desires, she has to be providedalternative accommodation comparable to the standard of living she is used toand in such situations. The cost of the accommodation and her maintenance has tobe paid for by her husband or partner. Thus there is provision for rapidtemporary rights for the woman pending disposal of the case. This makes perfectsense as far as wives are concerned. But to put the same weapons in the hands ofa temporary live-inpartner amounts to letting our notion of gender justice runhaywire. In effect it means that a man has no right to break off a love affairwithout paying through his nose.

A woman who is the victim of domestic violence will have the right to theservices of the police, shelter homes and medical establishments. She also hasthe right to simultaneously file her own complaint under the existing lawsagainst domestic violence, such as Section 498A of the Indian Penal Code. Thus,an accused person will be liable to have charges framed against him under boththe old law and the new one. Further, the offences are cognisable and non-bailable.

No Safeguards against Abuse of Law

It is unfortunate that despite widespread complaints of misuse of earlierlaws the new Act pays scant attention to building safeguards against malafideuse of 498A and the anti-dowry laws. All it has done is to pile on moreprovisions with similar potential for abuses.

Section 498A of IPC enacted in 1983 defined "cruelty by husband orrelatives of husband" as a new cognizable offence. As in the new DVA, underSection 498A too, cruelty was given a very wide ranging definition to includeviolence that leads to bodily harm, or danger to life, limb or physical health,but also includes endangerment of mental health, harassment and emotionaltorture through verbal abuse.

In addition, Section 498A made it obligatory for the police to take promptaction and arrest all those named by a woman alleging cruelty by her husband andin laws. The bail in such cases could be opposed and delayed. Thus in many casesthose accused of "cruelty" to wives or daughters-in-law got punished evenbefore the trial actually began.

Given the corrupt and lawless ways of police, this provision came to bemisused and abused widely by the police to extract bribes as well as byunscrupulous women and their lawyers to blackmail the groom’s family even ontrumped up charges. Manushi has dealt with numerous cases whereby innocent men and their families have beendevastated by unscrupulous wives and daughters-in- law.

It is not just men but even a lot of women, who have suffered theconsequences of irresponsible use of Section 498A, believe that it is extremelyone sided and an instrument of blackmail rather than of securing justice. On theother hand many genuine victims of violence hesitate to seek legal redress under498A because it would mean getting their husbands and in laws sent behind bars.While many kids may support their abused mother in seeking divorce, most do notsupport their mothers in getting their fathers sent to jail even if they havepersonally been victims of abuse because having a father convicted and sent tojail mars and stigmatises the life of children as well (See my article: "Underusedand Abused: Laws against Domestic Violence" in issue No. 120 also available onthe Manushiwebsite).

So deep is the reaction against this easy-to-manipulate-law that in recentyears senior police officers, including women officers in-charge of CrimeAgainst Women Cells (CAWCs), have let it be known to those handling such casesto go slow on booking cases under 498A. This means even genuine cases of abuseend up being viewed with mistrust.

Implementation Machinery

Section 8 of the law provides for the creation, and stipulates theresponsibilities of Protection Officers (POs).