What Survivors of Domestic Violence Need from Their New Government

This article discusses the problems with the current domestic violence act and discusses what a new government can do to alleviate the sufferings of a large section of women who are struggling to enforce court orders. 

As we enter yet another election season, we see political parties competing with each other to have a special page in their election manifesto to address women’s concerns in a ritualistic manner. Perhaps it is necessary to unearth the ground reality about what women experience, especially around the issue of domestic violence and make some recommendations based on this reality. 
The focus of the women’s movement has primarily been centred around legal reforms to combat violence. Sadly, the overemphasis on legal reforms has overshadowed the social reality of inaccessibility of legal mechanisms to those who need its protection the most.

Meanwhile, a parallel narrative has gained credence that women misuse stringent provisions and implicate innocent men. This myth is being perpetuated at all levels of the legal edifice, including the Supreme Court. Endorsed by lawyers and sensationalised by the media, it provides fodder to men’s rights groups. Their anecdotal stories run counter to national and international statistics about the extent of prevalence of violence against women in India. Since violence is a norm, stories of even suicides by married women and murder of wives by their husbands are passé. 

Facts and Figures

How grave is the problem in India? One place where huge data is collected and analysed is National Family Health Survey (NFHS) surveys which takes place every 10 years. The statistic brought out by NFHS-3 (2005–06) were dismal. About 37.2% of ever-married women (aged 15-49) who responded to the survey had experienced either physical or sexual violence from their husbands.

Women reported having been slapped by their husbands, they reported being pushed, shaken, or having something thrown at them, having their arm twisted or hair pulled,; being punched or kicked, dragged, or beaten, 3% were choked or burnt and 1% were threatened or attacked with a knife, gun, or any other weapon. About 11% reported that their husbands had physically forced them to have sex even when they did not want to, and 7% reported that their husband forced them with threats or other ways to perform sexual acts they did not want to perform. In large number of cases (87%) violence was initiated within five years of marriage.

Spousal violence ranged from 5.9% in Himachal Pradesh to 59.0%. The good news is the more recent survey NFHS-4 2015-16 has revealed that incidence of domestic violence has been reduced considerably in Bihar and is now at 43.2%, a significant decrease of 15.8%.

The study revealed that women who make household decisions jointly with their husbands, including decisions about the use of their own earnings, were less likely to experience spousal violence than women who do not have a major say in these decisions or who mainly make the decisions on their own. Education lowered women’s risk of spousal violence. At least 10  or more years of education reduced considerably the risk of domestic violence.  It was ironic that prevalence of spousal violence was higher for women who are employed than women who are not, especially if they want to control the use of their earnings or if they earn more than their husbands. However, prevalence of violence was least among women who take decisions about the use of their earnings jointly with their husbands.  Only 13% of women who had ever experienced physical or sexual violence by anyone had sought help. Over four-fifths of women had neither sought help nor told anyone about the violence. Abused women who had sought help most often sought help from their own families. Only three per cent of abused women who sought help for the violence sought help from the police.
NFHS-3 brought out the disturbing fact that more than half of women (54%) and men (51%) agreed that it is justifiable for a husband to beat his wife under some circumstances. They felt that wife beating was justified when the wife disrespected her in-laws. Neglect of the house or children was the second most commonly agreed justification for wife beating for both women and men.

Domestic Violence Act

It was in this context of wide prevalence of violence in the country that a sustained campaign was launched by women’s groups and finally after two decades, in 2005, the Protection of Women from Domestic Violence Act (PWDVA or Domestic Violence Act) was enacted. The Act expanded the definition of domestic violence to include not just physical, but also verbal, emotional, sexual and economic violence. Acknowledging that domestic violence is a widely prevalent and universal problem of power relationships, the Act made a departure from the penal provisions, which hinged on stringent punishments, to positive civil reliefs of protection and injunction. The Act provided the scope for urgent, protective injunctions, dispossession from the matrimonial home or alternate residence. It also provided for economic rights including maintenance and compensation.  

The wide definition of domestic violence—physical, mental, economic and sexual—brought within its purview the invisible violence suffered by women and entitled them to claim protection from the courts. The statute articulated the problems faced by millions of women and the hope was that it would lead to a greater sensitivity among the judiciary. A judge called upon to provide relief to a woman under the new Act was bound not just by the wordings but the ideological framework, which underscored the enactment. Due to this there would be greater credence to women’s testimonies. The key wordings were ‘expeditious civil remedies’ located within magistrates’ courts with criminal consequences for violation. It was premised on a convergent model between designated stake holders who would work in coordination. A new office was instituted under the act, that of the Protection Officer (PO) to assist women to approach the courts and other support services, which would be situated within the Department of Women and Child Development (WCD).  

Empty Promises

Unfortunately even after a decade and half, the assurances made in the act have not been actualised when we examine the cases which are filed under this act. 
Let’s start with Anita George[2], a frail woman of around 40 who was severely beaten by her husband ever since they got married. Finally, when she could not endure it any more, with the support of a well-wisher she approached the State Women’s Commission, a statutory body mandated to help women. She pleaded that her husband was threatening to kill her. When the husband did not respond to the letter sent by them to come for counselling, she was referred to the local police station. Instead of registering a complaint, the police called her husband for counselling, and then sent her back to her matrimonial home. Both the agencies did any follow-up, nor was any step taken to ensure she was safe. The case would be documented as a success story in their records.

Three months later, the husband assaulted her brutally and broke three of her ribs. In utter despair, she drank poison and would have died, but for the timely intervention of her sister, who admitted her to a nearby hospital. The state agencies that sent her back to her abusive husband were not held accountable for her condition. It was a herculean task to get the police to register a complaint under the much-maligned Section 498A, IPC (Indian Penal Code). We also filed a case under the Domestic Violence Act (DV Act) for protection and maintenance—which is still languishing.
Anita is losing faith in the judicial system, as after the initial intervention there has been no progress in her case. Instead of passing orders, the magistrate’s entire focus was to reunite the family. Her economic situation is grim. As a bleak future looms, Anita, who is living with her sister along with her son, may even consider this suggestion, as she cannot see any other option. And when that happens, her case filed under Section 498A will be quashed and it will be added to the list of “false cases.”

Let us examine another case, that of Divya. When she was waiting at the local bus stand near her parental home in Vasai, with her 6-year-old, a group of ruffians accosted her. They snatched her son away and assaulted her in full public view. The incident was video-recorded and circulated in the local cable television network. Divya somehow reached the local police station and was able to file a complaint. Fortunately, the police acted promptly. After an anxious wait of two days, they tracked down the child and restored custody back to Divya. Six months have passed since this incident and Divya lives in constant fear that any day the husband may succeed in snatching the child from her again. She is waiting desperately for a court order of protection. 

Divya’s husband, an extremely violent man, who lives in Nashik, has been evading service in the case she had filed under the DV Act eight months ago in the magistrate’s court in Vasai and has asked for immediate protection, injunction restraining the husband from snatching her child away, for the custody of her child and for maintenance. But her papers have not moved and her case is still at the stage of service. She has tried all means of ensuring that the papers reach her husband but in vain. 
Divya had escaped from her matrimonial home with her child, taken shelter with her mother and through a lawyer had filed a case under the act. A further six months have passed since the attempt was made of snatching the child. 
The situation in the Vasai court is depressing, to say the least. The court clerk cannot even locate her case papers in the cramped court hall. Each time the lawyer is asked to furnish a fresh set of papers to send the notice and the lawyer is suspecting that the original papers filed by her in the court may be lost. 

This is not the only matter pending in that court. All cases filed under the DV Act in this court are languishing as the magistrate is overburdened with other assignments and he thinks cases filed under the DV Act are not a priority. Divya is gradually losing faith in the court system. She desperately needs a protection order, however, despite the case having been filed more than a year ago nothing has moved in this court. Vasai is in the outskirts of Mumbai. If this is the fate of cases filed under the DV Act in a court located just outside Mumbai, one can imagine the plight of cases filed in far-off rural areas.  

Let us look at Saira (name changed), who was married just after she finished school. For two years, she was harassed for dowry. Her husband, a drug addict, used to return home late at night and assault her violently and force sex on her. She had no respite even when she got pregnant. One day, after a brutal attack, she suffered a miscarriage. She was writhing in pain and begging her husband to take her to hospital, but he refused. Finally, she called her mother who admitted her to a nursing home. That was the end of the marriage. He did not send her a talaqnama. After all attempts at reconciliation failed, Saira went to her matrimonial home to pick up her belongings and valuables. She was abused and asked to leave. Before she could reach the local police station, the husband and in-laws filed a complaint against her and her mother. The social worker directed her to a protection officer to file a case under the DV Act, but did not accompany them. They were lost. In sheer desperation, her mother approached a non-governmental organisation. After a lot of pressure, the police registered a case under Section 498A and her belongings could be retrieved. The local NGO then referred her to us, and we filed a case under the act. Due to the pressure of litigation, the husband agreed to pay Rs 1.5 lakh as final settlement and a divorce by mutual consent—mubarra. The case under Section 498A was quashed—filed away as one more “false case”.

Let us look at one more case—that of Karuna Kamble. She was thrown out of the house when she was pregnant. She took shelter with her parents and delivered a daughter. The husband was enraged that she had not given him a male child and just refused to accept her back. Her parents did not have the resources to support her. With the help of a local NGO, she reached our organisation. We filed a case under the DV Act for residence and maintenance. After systematic follow-up, finally an order of maintenance and residence was passed in her favour. She was awarded Rs 5000 maintenance for herself and her daughter and a further amount of Rs 2000 for rent of a residential place, a highly inadequate amount in a place like Mumbai. Her husband filed an appeal which was subsequently dismissed, but the husband has not paid any amount yet. A distress warrant has been issued and if not complied, the court may issue an arrest warrant. However, if he decides that imprisonment is more favourable than paying the wife the amount ordered, there is nothing Karuna can do, and it will only be a paper decree.

Similar stories can be narrated of women from across class and religious communities. However, collectively, interventions by community based and women’s rights organisation, including our own, Majlis, which provides litigation support to victims of domestic and sexual violence do not add up to even a drop in the ocean.

Against this ground reality, what can a new government do to alleviate the sufferings of a large section of women who are struggling to enforce court orders? The situation is particularly grim for those women whose husbands are living abroad. It is almost next to impossible to enforce maintenance orders. 

Way Ahead

A suggestion made by several women’s organisations over several decades is that the government must create a fund available with magistrates and judges passing maintenance orders. In the event that orders cannot be executed it must be the responsibility of the government to pay the amount to the distressed wife and then recover the amount from the husband. This will greatly help women like Karuna who are struggling to enforce court orders. 

The government also needs to bring in respite to women whose cases are pending in court for months together like Divya’s and Anita’s. This despite Section 12 (5) of the DV Act stipulating that all matters under the DV Act must be completed within 60 days. This issue can be stopped only by bringing in judicial reforms and increasing the strength of magistrate’s courts in the country so that courts are not overworked and have time to dedicate to cases under the DV Act. Though the courts do give dates every fortnight, the cases are not heard and even urgent interim orders are not passed and this can be improved only with pressure from the High Court to consider cases filed under the DV Act on an urgent priority basis as per the stipulation of the act.

At a broader level successive rounds of NFHS surveys create space for deeper understanding of various aspects of domestic violence and for evidence-based policy recommendations. For instance, some states showed a reduction of violence. Significant among them is Bihar which reduced domestic violence from 59% in 2005-06 to 43.2% in 2015-16, a significant decrease of around 15.87%. Assam, Madhya Pradesh and Maharashtra also have reduced rate of domestic violence[3]. The factors behind the reduction of spousal violence need to be scrutinised further. 

It is now imperative to regularise the initiative. The scope of the NFHS could be enhanced by adding new dimensions in successive rounds; but the basic data collecting methodology should be kept intact, so that the trend of domestic violence over the years could easily be tracked. Researchers and policymakers should make the best use of it for policy level interventions as well as working with grass-roots stakeholders in pursuit of reducing domestic violence.[4]
And finally the government should make all out efforts to change the present propaganda that women misuse laws, so that a more realistic picture is conveyed to judges and policymakers. 
 

 

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