3.1 The Lawyers Collective Bill on Domestic Violence

The draft bill was visualised as an emergency law providing immediate and effective relief to a woman facing domestic violence. When a woman is faced with domestic violence, the primary aim of any intervention – legal or otherwise – should be to stop the violence and provide for ways to protect her from further v iolence. Additionally, she would require shelter, medical aid, l egal aid, monetary relief, etc, that will help her to build a life away from an abusive relationship. In the absence of violence, a woman may be encouraged to think of her long-term options including divorce, maintenance, reconciliation or criminal prosecutions. The following were some of the salient aspects of the LC Bill.

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limit the protection against violence to marital relationships alone. Thus, it introduced the concept of “domestic relationship” which included all relationships based on consanguinity, marriage, adoption and even relationships which were “in the nature of marriage”. Including relationships outside the marital context within the scope of this law was necessary in view of the absence of compulsory registration of marriages in India, which leaves a majority of women outside the domain of legal protection. Hence, the term “matrimonial relationship” was replaced with “domestic relationship”. The site of violence, the home, being the private domain was intended to be brought within the purview of the law. Daughters who are thought to have little or no rights in ancestral homes or in any event are seen as outsiders and waiting to be married off; widows who are seen as having no right to continue to live in the house after the death of the husband; mothers and old parents, seen as a nuisance by children are all vulnerable to abuse in the home, and hence, were included within the purview of the law.

– the police and the courts – were largely inaccessible to the women. Prior to the enactment of the PWDVA, the women faced with domestic violence could either approach the police or their natal families. Because of the strict divide between the public and the private spheres, and the deference that the “family” has

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traditionally enjoyed as a “private space”, the police would be r eluctant to intervene. Even the natal families would often persuade or coerce the women to return to the abusive home. Recognising this to be a major barrier between the women seeking j ustice and the legal remedies, the bill provided for protection

3.2 Consultations on the Bill with Women’s Groups

Between 1998 and 2001, LC began a dialogue within the women’s movement on the draft proposal. The dialogue involved a series of consultations and meetings with different women’s organisations in various parts of the country on each aspect of the law. The draft bill was also widely circulated among lawyers for their feedback and criticisms. The draft proposal was thus revised after every such consultation. It is instructive to visit some of the debates that ensued at these meetings and the questions and doubts that were raised. For one, it helps to understand the context of the law better and brings greater clarity vis-à-vis the n ature and scope of the law. It also attests to the fact that the law has emerged from a wide process of debate and deliberation within the women’s movement.

A much debated issue was whether the proposed law should be gender-neutral and extend its protection to men faced with violence in the home, as well. The wide consensus from all groups involved was that the bill had to be gender-specific in nature since the objective was to protect women due to the pervasive problem of gender inequality. The violence faced by women is a gendered phenomenon that reproduces and reinforces gender inequality, and hence, a gender-neutral law would defeat the purpose of a law on domestic violence. And given the power relations in the home, the men could use a gender-neutral law to dispossess women from the homes. It is in recognition of this gendered power imbalance, that the Constitution enjoins upon the State to

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make “special provisions” for women and children in its pursuit of prohibiting discrimination on grounds of sex.

Keeping in mind the fact that often children are also victims of domestic violence, one of the initial drafts of the law allowed a child to bring an application under this law, if represented by a parent or guardian. Accordingly, there was a definition of “applicant” in the draft. There were, however, concerns raised by women’s groups, that if such power of representation of a minor child is given to both parents, there may be a possibility of the father (if he is the abuser) using this law against the child’s mother. The father could tutor the child to depose against the mother. He could indirectly achieve what he is forbidden under the law to do

– i e, depriving the woman of her right to reside in the house. Therefore, as a safeguard against misuse in the law, the draft was amended to provide that only a mother who was herself an a ggrieved person under the law could bring an application on behalf of her minor child who has also faced domestic violence.

Another major area of contestation was whether women could be made respondents in a case of domestic violence? Initially the bill had defined the “aggrieved person” as a woman, and the “respondent” as a man. However, it was felt that the new law had to be consistent with Section 498A which allowed a criminal complaint for cruelty to be filed against all relatives and the husband including female relatives. Hence, a proviso was added to the definition of “respondent” by which the aggrieved women were enabled to bring action against a “relative” of the husband/ male partner so that both men and women committing violence could be made respondents and relief sought against them. The intention was to allow married women to file applications u nder the law against their mother-in-law or sister-in-law or other female relatives through marriage, if they were responsible for the violence.

Similarly, an earlier draft of the bill allowed dispossession

o rders to be passed against both men and women, if they are abusers. However, a concern was expressed that a man might set his mother up as an aggrieved person under this law to dispossess his wife of her residence – thereby indirectly achieving what the law had sought to prevent. And also the opposite, with the dispossession of old mothers by their sons through their wives or sisters. At the same time, it was important to ensure that the protection of the law was not weakened in any way. The intention of this law was not to classify offenders according to their sex. It emerged, however, that an effective compromise would be if the order directing the respondent to remove himself from the shared household was not made available against women respondents. After extensively debating the issue of possible misuse of the law vis-à-vis reliefs against women offenders, it was agreed to include a proviso, which limited the effect of dispossession to men alone,7 while all other reliefs would equally apply against both men and women.

4.1 The Government Introduces Its Own Bill

On 8 March 2002, the National Democratic Alliance (NDA) government, introduced a separate bill entitled, “Protection from D omestic Violence Bill, 2001” (hereinafter, GOI Bill) in the Lok Sabha. At one level the GOI Bill was an acknowledgement that domestic violence was a serious issue requiring specific legal i ntervention. There has been a consistent denial of the existence of domestic violence against women and a refusal to address the i ssue. To that extent, the introduction of the GOI Bill was a significant victory. However, in terms of content, the GOI Bill not only fell short of what the women’s movement had been asking for, but it was feared that if enacted, it might have dangerous impli cations for women facing domestic violence.

The emphasis of the GOI Bill, it appeared, was the preservation of family rather than preventing violence against women and protecting their right to a life free from violence. The scope of the GOI Bill was much narrower than the LC Bill, in terms of categories of aggrieved persons and limited with respect to the nature of reliefs available. The definition of domestic violence in the GOI Bill, among other things required the conduct/assault of the respondent to be “habitual” or what made the “life of the aggrieved person miserable by cruelty”. This was totally unacceptable as every single act of violence degrades the woman even if the abuser is not “habitual” in his behaviour, and she should be entitled to seek legal redress against the same. The other elements of the definition were also vague as the bill did not define what would constitute “cruelty” or how to assess “misery” of the a ggrieved person. As per the GOI Bill, the respondent was r equired to be a “relative” of the aggrieved person, the term “ relative” defined as persons related by blood, marriage or adoption. The implication of this was that women who were in relationships other than legally valid marriage were excluded from the p urview of the law.

Section 4(2) of the bill allowed the respondent to take the plea of self-defence in cases of domestic violence. Normally, the plea of self-defence is available to the victims of a crime; however, the GOI Bill gave the defence to the alleged perpetrator of the crime. The respondent thus could get away even after brutally assaulting a woman on the pretext that such conduct was meant for his own protection or for the protection of his or even another p erson’s property.

A major shortcoming of the GOI Bill was that there was no decla ration of rights of the aggrieved person. There was no provision indicating that the woman in a domestic relationship had the right to reside in the shared household. One of the major lacunae in our matrimonial laws is the fact that none of them, whether Hindu, Muslim, Christian or Parsi, contain any such declaration of a right to reside in the matrimonial home.8 As explained earlier, this is the root cause of the vulnerability of a woman in her matrimonial home. To provide against such situations, the LC Bill had conceptualised the right to reside in the shared household coupled with the stop-violence orders. The GOI Bill, however, did not have any provision of immediate relief to the woman.

It also did not provide a time frame within which to complete the proceedings. It is important that interim relief is provided immediately on application, by the magistrate, pending the hearing.

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This may or may not be confirmed after the hearing. However, the GOI Bill followed the usual practice as per the Code of Civil Procedure and thus it meant that women will get relief only after summons was served to the respondents. As a result, it could take months for the women to get relief as most often the respondents devise ways to avoid service of summons. Thus, the critical importance of providing immediate interim relief was not addressed by the GOI Bill.

The GOI Bill also had a provision requiring mandatory counselling for the aggrieved person and the alleged abuser. This was unacceptable as it put the abuser and the victim on the same plane. Counselling is definitely one of the methods of correcting abusive behaviour. But why empower the magistrate to insist on “mandatory” counselling of the aggrieved person as well? Clearly the mandatory nature of the counselling was not meant to help the woman address the trauma of violence. Rather it could easily be a means to convince her to “adjust” to her situation and c ontinue in an abusive relationship.

4.2 The Parliamentary Standing Committee

In response to the obvious outrage expressed by women’s groups against the GOI Bill, it was referred to the Parliamentary Standing Committee on Human Resource Development to examine the provisions of the bill. Between May and December 2002, the committee heard the views of the department of women and child development, invited memoranda from individuals and organisations and also received oral evidence and presentations by different women’s groups. LC put forth its submissions before the committee, wherein it pointed out the flaws and omissions in the GOI Bill and contrasted them with provisions of the LC Bill. It was i mpressed upon the committee that arriving at settlements and salvaging marriages should not be the function of a law on d omestic violence. The report of the standing committee, submitted in December 2002, reflected that most of the suggestions made by LC were accepted by the committee.

On the issue of not including women falling outside the narrow scope of the term “relative” within the ambit of the Act, the response of the State was that “such women as have been living in relationship akin to marriage without legal marriages were not included simply because the prevailing cultural ethos of the nation did not encourage such relationship”. The committee in its report stated that there were, in fact, numerous cases of men and women living together without valid marriages and yet having social sanction. Besides, the primary issue in providing relief to women faced with domestic violence was the recognition of the woman’s human right to a dignified life and not the propriety of the relationship she was in. Thus, it concluded that providing r elief under the bill to a woman whose marriage is not legally valid will not be in conflict with the existing laws and will not give any legal sanction to illegal marriages.

The committee also opined that there was no need to enable the respondent to take the plea of self-defence in the bill, and hence, the clause should be deleted. Similarly, the committee a ccepted the suggestion that the bill ought to carry an unambiguous declaration of the women’s right to reside in the shared household and the magistrate should be obligated to pass orders

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accordingly. In addition to accepting the major demands of the women’s groups, the committee also asked for better enforcement mechanisms to be incorporated in the bill and asked the State to address the issue of violence against women through other means in addition to the law.

However, the campaign was not able to achieve anything substantial in the two years following the recommendations of the standing committee, as there was no initiative from the government to reformulate the bill in accordance with the report of the standing committee. LC continued with its efforts during this time, simultaneously trying to emphasise the need for this law with the government and sustaining the consensus on the issue among the women’s groups. Petitions were sent to the minister of human resources development by different women’s groups, u rging the government to introduce the bill in the Parliament with amendments suggested by the standing committee. However, in February 2004, the Lok Sabha was dissolved and with it the bill also lapsed.

4.3 Lobbying with the New Government

In May 2004, the United Progressive Alliance (UPA) coalition came to power after the election. It was regarded as a progressive step and a new beginning when the enactment of a civil law on domestic violence was included in the Common Minimum Programme of the UPA coalition. This was an important step as it gave a political significance to the issue of domestic violence. In July the same year, a final draft of the bill, after extensive consultations, was presented to the minister of human resources development, which was then accepted and referred to the department of women and child development. For the next one year (July 2004-June 2005), the bill kept moving back and forth between government departments, and as a result, certain things got left out from the final bill that was presented to the cabinet. One such instance was the definition of the “applicant” that was removed from the bill. The implication of this deletion is that it is still u nclear as to how applications on behalf of minors can be moved under the Act.9 Similarly, there were certain additions that were not in keeping with our demands. For instance, the provision for joint counselling of the parties in Section 14 and Section 15 authorising the magistrate to take help from persons involved in “promoting family welfare” in any proceeding under the Act is a provision that could lead to coerced reconciliation, that we had been opposed to from the very beginning.

In June 2005, the draft Protection of Women from Domestic Violence Bill received cabinet approval and the bill was tabled in the Parliament in July. Members of LC, along with a number of other women’s organisations were present in the Parliament when discussions on the bill took place. Surprisingly, no questions were asked about the need for a law on domestic violence by any political party. One did not know if it was a reflection of a gradual social recognition of domestic violence as an issue of immediate concern or was it a plain apathy towards a law which was being enacted simply to fulfil an election promise. Certain members of the house expressed reservations regarding the inclusion of “relationships in the nature of marriage” within the purview of protected categories of women under the law. It was

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said that we were introducing concepts alien to Bharatiya S anskriti, which would send across the wrong message to the s ociety. However, the bill was unanimously passed by the Lok Sabha on 22 August 2005, and by the Rajya Sabha on 24 August 2005. On 13 September, it received the accent of the president and the Protection of Women from Domestic Violence Act, 2005 entered the statute book.

5.1 First Monitoring and Evaluation Report (2007)

The first monitoring and evaluation (M&E) report analysed the performance of the PWDVA, in the first year of its existence. The primary inquiry of the report was to what extent the State had put in place the necessary infrastructure needed for the implementation of the Act, like appointment of protection officers, service providers, medical facilities, etc. And we also wanted to know how the law was being used by lawyers and interpreted by the judiciary, particularly what kind of orders were being passed by the lower courts. Knowing fully well that it was too soon to make an assessment of the law, we decided not to arrive at conclusions but only to document some of the trends that could be observed with respect to the implementation of the Act.

Looking at the available data, we observed that the implementation of the Act was not uniform across the country. In most states, the protection officers were appointed at the district level, and in fact, existing administrative officials were doubling up as protection officers. There were states like Rajasthan, Punjab and Haryana, where protection officers had not been appointed. P rotection officers have a specific role to play in facilitating the women’s access to courts and a range of other services that the Act refers to. The absence of protection officers and negligible state-provided infrastructure meant that the aggrieved persons had to rely on the police and the existing machinery of the courts for activating the law. In most of the other states, women who could afford to hire lawyers approached the courts directly, while the others approached the protection officers first. Sometimes the courts sought the assistance of the protection officers, if the situation demanded. However, the lack of general information about the existence of protection officers and/or their inadequate numbers was seen as a serious handicap to women a ccessing the law. Andhra Pradesh seemed to have the best

56 s ystem in place, where the police, protection officers, service providers and legal aid service authorities coordinated their services to facilitate women’s access to courts. The police, which continue to be the first port of call for women in distress, were trained to set the Act in motion.

Data from the orders of the lower courts showed that primary users of the law were married women, although in a small number of cases, the petitioners were widows and unmarried daughters. As of 31 July 2007, 7,913 cases were filed across the country, under the PWDVA. Rajasthan had the highest number of cases filed under the Act (3,440) although protection officers had not been appointed in the state. Also, it was found that the most commonly granted relief was for maintenance followed by residence orders and protection orders. This was possibly because magistrates are familiar with granting maintenance orders u nder Section 125 of the Code of Criminal Procedure (CRPC). But the overall pattern of orders sought and granted was too diverse for drawing broad conclusions.

5.2 Second M&E Report (2008)

In the second M&E report, LC asked the same questions as the forst one. In addition, LC wanted to know the extent to which gaps identified in the first report were being fulfilled; whether the “best practices” recommended in the first M&E report still stood; how effective was the infrastructure in facilitating w omen’s a ccess to court and other services; and what was the j urisprudence that was being evolved by the high courts and S upreme Court on the PWDVA.

By the second year of its existence, there were 22 reported judgments under the Act delivered by various high courts. Significant among these was a judgment of the Delhi High Court upholding the constitutional validity of the PWDVA on the ground that the gender-specific nature of the law does not violate the guarantee of equality as it is a “class legislation” aimed at protecting women as a class that is disproportionately vulnerable to v iolence.10

A judgment of the Madhya Pradesh High Court showed that the question of whether women could be respondents under the law, which was a hotly debated issue prior to the enactment, had continued to be a contentious issue even after the law had come into force. The case, Ajay Kant & Others vs Alka Sharma11 arose in the context of an application filed by a wife against her husband and mother-in-law after she was dispossessed from her matrimonial home, following dowry-related harassment. Based on a literal interpretation of the provision, the court held that a proceeding under the Act can only be initiated against an adult male person. The rationale provided by the court makes it clear that the interpretation of the term “respondent” is actually based on what the court perceives to be essential for safeguarding women’s interests. Interestingly, however, in its attempt to provide protection to women, the court failed to recognise the specific genderneutral language of the proviso to Section 2(q), which uses the term “relative of husband or male partner”. Thus defined, a relative can be a male or a female, and consequently, the Act also protects women from violence perpetrated by the female family members of a male respondent.

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Significantly, a Madras High Court judgment held that the Act could be invoked even in cases arising before the Act came into force. In Dennison Paulraj & Others vs Mrs Mayawinola,12 the wife was forced to leave the matrimonial home following continuous harassment and dowry demands by her husband and in-laws. A lthough she left the matrimonial home prior to the enactment of PWDVA (2005), she claimed that the threat and harassment continued. The court concluded that the respondent had suffered part of the abuse after the commencement of the Act in the form of anonymous phone calls threatening violence. The court pointed out that in any case, the issue of retrospective application of penal statutes does not hold true in the case of PWDVA as S ection 31 penalises the breach of a protection order rather than the act of domestic violence itself.

In the first M&E report, it was noted that in a number of cases the magistrate had refused to grant residence orders to the a ggrieved women based on the Batra judgment. The second M&E, however, found that a few high court judgments had interpreted “shared household” based on the factual context and not on the basis of semantics. In P Babu Venkatesh & Ors vs Rani13 the Madras High Court held that the ratio laid down by the S upreme Court in Batra could not be applied as the facts clearly demonstrated that the husband had transferred the household into the name of his mother with the intention of defeating the rights of the wife, after the matrimonial dispute arose. In arriving at its conclusion, the court recognised the fact that before the wife’s dispossession, both parties resided jointly in the said household. Similarly, in Vandana vs Mrs Krishnamachari,14 the Madras High Court held that a narrow interpretation of the provisions would leave many women in distress and without any remedy. The judgment held that the question is not whether the woman had “lived” in the shared household, but whether she has a right to live in the same. In another case appearing before the Delhi High Court,15 although the marriage was solemnised, the wife was not allowed to enter the matrimonial home. She filed a suit claiming the right to reside in the matrimonial home. The husband argued that she had no such right as she had not “lived” in the matrimonial home. Although the judge concluded that the woman did not have a right to reside as the house was owned by the mother-in-law, it was held that she could be dispossessed only with “due process” of law and cannot be physically thrown out. This judgment actually shows a keen appreciation of the rule of law and respect for rights, and thus makes available to the woman, safeguards that are otherwise granted to tenants and trespassers.