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Domestic violence: Making the law work in India

Nov 29, 2009

Arguably India's most invisible crime – domestic violence – continues to largely languish behind the curtains of the Great Indian Household. Women within the supposed security of their homes are being slapped, having their arms twisted and hair pulled, writes Pamela Philipose, director, Women’s Feature Service.

New Delhi: They are being kicked, dragged and beaten up – the National Family Health Survey-3 (NFHS-3) reports that 12% of married women surveyed reported being kicked and at least one-in-ten married women have experienced sexual violence at the hands of their husbands. Many end up being thrown out of their homes and socially stimatised to boot.

While such behaviour would be deemed criminal under any other circumstance, if it plays out within the family it gets miraculously transformed into tolerated or tolerable behaviour, justified even by its victims.

According to NFHS-3, more women than men (54% and 51%, respectively) believe it is okay for a husband to beat his wife if she "disrespects" his family or neglects the house and children.

For over half a century, the Indian state deferred to the view that situations like this are a private matter. This is why the Protection of Women from Domestic Violence Act (PWDVA), enacted in 2005 is historic in so many ways.

Not only did it give a legal definition to the crime in unambiguous terms, it brought within its ambit of relief not just wives but other women in familial relationships, including mothers, sisters and live-in partners, and protected their right of residence. It also recognised that such battered and abused women required quick and effective relief by providing for a multi-agency regime to expedite it.

Three years later, how effective has this law been? This was the focus of a monitoring and evaluation exercise spearheaded by the Lawyers Collective Women's Rights Initiative (LCWRI), in partnership with the National Commission for Women (NCW) and the UN Trust Fund to End Violence Against Women.

According to Indira Jaising, director LCWRI: "Three years is of course too short a period to gauge the efficacy of such a law but the fact that around 3,600 cases have been filed under it in a state like Uttar Pradesh indicates that awareness about it has spread. Also, the performance of a state like Andhra Pradesh in setting up support systems indicates that some institutionalisation of the law has also taken place."

But Jaising is the first to acknowledge that the long and arduous journey to justice has only just begun and that a law on domestic violence does not automatically mean that such violence will end. The gaps are many and at several levels. Delays continue to be an insurmountable problem, judges continue to hesitate in granting ex-parte orders so that the proceedings are completed quickly. And the law has yet to gain the necessary support from civil society – women who dare to take on their attackers continue to wage very solitary battles.

The Third Monitoring and Evaluation Report 2009 on the law pointed out that the very agencies required to ensure justice in these cases need to be educated and sensitised.

In a survey cited in the report, protection officers who play a central role under the PWDVA to facilitate the affected woman's access to justice, often value "welfare of family" more that the "rights of women" and would even argue that the "primary role of a woman is to take care of the family".

The report observed that since protection officers serve as the first filter to cases of violence they could "possibly be acting as a barrier to the woman wanting to approach the courts".

The police, another key functionary in the justice process, also have highly ambivalent attitudes to women in such situations. For instance, an estimated 30.4% of police personnel in Rajasthan believe "women deserve to be beaten in certain situations", while 84.4% maintain that domestic violence is a "family affair".

The majority of police personnel also seem to agree that "maintaining the family and security of children should take precedence over a woman's personal well-being and safety". What is perhaps even more worrying is that women who have filed cases have reported that the police only "spoiled" their cases by taking bribes or conniving with their husbands.

The obvious lack of understanding of domestic violence as defined by the PWDVA among key players like the police and protection officers has several implications. For instance, while physical violence, which is visible, may get recognised and acted upon, emotional and verbal abuse is often dismissed and sexual violence within marriage remains completely unrecognised as a concern.

If civil society is apathetic to the issue, so too unfortunately is the Government of India. Taking the justice delivery process to the last woman is still very much a pipe dream. Funds are clearly a constraint and the Secretary to the Ministry of Women and Child Development, D.K. Sikri, acknowledged this at a national level meeting on the subject. He indicated that the central government has now requested funding for implementing the law from the 13th Finance Commission.

But women activists want the Centre to do much more, and start by ensuring a proper budgetary framework. In fact, in striking contrast to the Centre, some states have gone ahead and made budgetary allocations to actualise the PWDVA and there has also been a gradual increase in the appointment of independent protection officers on a full time basis.

What is also clear is that if this law has to achieve its stated purpose, there would have to be far greater understanding about the unacceptability of domestic violence at every level of society.

The NFHS-3 data shows that most women do not seek help in situations of domestic violence – and an estimated two out of three women have not only never sought help but have never told anyone about the violence.

This silence rises from a lack of agency – not surprisingly nearly 46% of married women with no education have experienced spousal violence. Ending domestic violence then needs more than a law. It requires the comprehensive empowerment of women. But a law like PWDVA can help greatly and people need to understand its true intent.

As Gauri Chaudhury of Action India pointed out: "This new law is not going to break the Indian family. On the contrary, it will help create peaceful homes, free of fear and violence."

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