Tardy progressT.K. RAJALAKSHMI
|The Protection of Women from Domestic Violence Act has in its four years faced many challenges in implementation, says a monitoring report.|
A signature campaign organised by the Women's Voice Coordination Committee before the Secretariat in Thiruvananthapuram on August 30 to highlight the demand for a special court to try cases relating to domestic violence.
FIVE years ago, Parliament enacted a significant piece of legislation relating to women. The Protection of Women from Domestic Violence Act (PWDVA), 2005, designed as a civil law, came into effect a year later, in October 2006. The fundamental feature of the Act was that it empowered magistrates to grant protection orders for female victims of domestic violence. It also provided for monetary relief and shelter to the victims.
The Act came as an addition to the existing provisions in the Indian Penal Code – Section 498 A (physical or mental cruelty to the wife by the husband or relatives, a cognisable and non-bailable offence) and Section 304 B (which was incorporated in the IPC to create a new offence, "dowry death").
For the past three years, the Women's Rights Initiative (WRI) of the Lawyers Collective has been bringing out a report on the progress of the implementation of the Act. The Fourth Monitoring & Evaluation Report on the PWDVA, which was released last December, highlights several challenges in the way of the effective implementation of the Act.
The report says that though the number of cases filed under the Act has increased, certain interpretations of its provisions have often gone against the spirit of the law. In the preface to the report, Indira Jaising, executive director of Lawyers Collective, refers to a 2007 order of the Supreme Court where a statutory guarantee of the right to reside in the shared household was linked to the ownership of the home rather than the fact of residence in the joint household. "The effect of this judgment was to deny to hundreds of women living in joint families the protection of a roof over their heads only for the reason that the parents-in-law owned the home, notwithstanding that it was the actual and the only place of residence of the woman." This, she says, "betrayed a mindset which was fixated on the right to protect property rather than human rights".
Another recent interpretation having an impact on the rights of women in the household pertains to the expression "relationship in the nature of marriage". The PWDVA at present does not extend to women who are in relationships "in the nature of marriage". Also, strains of dissent have appeared regarding alleged misuse of the PWDVA, just as there has been an outcry against the misuse of Section 498A.
The report says that while there has been progress in terms of responsiveness by the enforcers of the Act and the state machinery, sufficient funds are yet to be allocated for its effective implementation. For instance, only half of the 28 States made separate allocations for the implementation of the Act. These are Andhra Pradesh, Assam, Delhi, Haryana, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Punjab, Sikkim, Tamil Nadu, Uttarakhand and West Bengal. It is a matter of concern that States such as Bihar, Rajasthan and Uttar Pradesh, with a higher incidence of violence than in other States, have still not committed any resources, says the report.
Protection Officers (P.O.) are the crucial link between victims and the agencies that provide relief to them. From the filling in of Domestic Incident Reports (DIRs) to assisting in the enforcement of court orders, P.Os have various functions. Upon receiving a complaint, the P.O. is required to fill in a DIR and submit the same to the magistrate and forward copies to the police officer in charge of the concerned police station and to Service Providers (S.P.) in the area. The P.O. can either be a non-governmental organisation (NGO) or a government official. Governments can also appoint anyone exclusively as a P.O. holding independent charge.
Tamil Nadu, Delhi, West Bengal and Haryana have independent P.Os, while other States have given additional charge of P.Os to serving officials. A drawback observed by the monitoring report was that the majority of the P.Os appointed in the States were at the district level though the ideal scenario would have been for them to be appointed at the block or taluk level so as to enable easy access to the aggrieved.
Interestingly, States which had a large number of P.Os did not show a corresponding increase in the complaints filed as there was a lack of awareness among women about the existence of these officers.
Under the PWDVA, the DIR containing the formal complaint can be recorded with the P.O., the S.P. or the head of the Medical Facility (M.F.). Madhya Pradesh recorded the highest number (9,654) of complaints under the Act from August 2009 to June 2010 (the period under study for the fourth report), but DIRs were filed only in about half of these. In West Bengal and Manipur, though, the number of DIRs filed corresponded with the number of complaints.
The role of the police, according to the report, still needs to be clear in order to ensure that orders passed are enforced by them. For instance, the report says, the police in Delhi and Maharashtra were found wanting in cases of breach of court orders. In States like Tamil Nadu, Assam, Manipur and Mizoram, the police were more responsive.
In Tamil Nadu, however, the police took action in cases of breach of orders only after being directed by the court. In Mizoram and Manipur, on the other hand, the police swung into action rather immediately, which resulted in the early recovery of the 'stridhan' and the rescuing of children wherever necessary.
The delay by the police often results in the loss of 'stridhan' to the aggrieved. In Delhi and Maharashtra, the police were found to be extremely tardy in taking action.
The report's observations on S.Ps, mandated by the Act to give counselling and pre-litigation support services to victims and follow through until they receive all relevant reliefs, are also not encouraging. Barring notable but limited exceptions like in Kamrup district in Assam where three S.Ps not only provided legal guidance in filing DIRs but assisted the women throughout the legal process, the problem across the country was that S.Ps themselves were unaware of their role under the Act.
Lok Sabha speaker Meira Kumar addressing the Fourth National Conference on the Implementation of the Protection of Women from Domestic Violence Act, 2005, in New Delhi on December 19.
The Act provides for medical and shelter services as well. Notified M.Fs are also empowered to register DIRs and forward a copy to the P.O. However, the assessment of four years of the Act shows that M.Fs were not visible in the implementation of the Act. Shortage of medical supplies and women doctors was another reason for victims not seeking recourse to M.Fs. Shelter homes, too, were found in deplorable conditions so much so that the victims refused to go there.
An important assessment of the report is that a high number of complaints did not necessarily refer to the number of women seeking help under the PWDVA. It appeared that the figures related to the number of women accessing existing government schemes for women, including help lines.
The report also says that complaints received by P.Os did not necessarily represent a record of violence. "It seems that the 'complaints' are being registered at the P.O's office when a woman comes in with a report of domestic violence. …There seems to be a lack of understanding on what constitutes a DIR and no uniformity among the States as to what is meant by 'complaints'," the report says.
To that extent, it was found that there was a lack of understanding of the Act by P.Os themselves. The settlement of a large number of cases also indicated that P.Os were into counselling, leading to the underutilisation of S.Ps.
The PWDVA was expected to provide fast relief to victims of domestic violence, but many glitches remain in its fourth year of implementation. For one, the access to the P.O. itself is a Herculean task. The report recommends that a dedicated cadre of P.Os who are sensitive to women's issues be appointed.
In a country where even the educated have a problem understanding the language of law or even accessing the basic minimum under the legal system, to expect the vast majority of women suddenly to make use of the law successfully is at best a pipe dream.
Therefore, it is not surprising that even in a civil law, the police were the first point of contact for more than half of the women surveyed for the report. Even here, the police personnel were found wanting in knowledge about the provisions of the Act. Very few women received professional counselling support. The focus of the police was more on reconciliation and in preventing the cases from reaching the courts. The number of compromises increased in most of the States. The report also contains an interesting section on the analysis of orders of magistrates and Sessions courts.
The report makes several recommendations, including amendments to the Act to prevent delays in providing relief. For instance, in one case the court made a P.O. report mandatory for getting an interim order. This, the monitoring report says, should be done away with as it causes delay.
The magistrate, the report further says, should not refuse an application for the reason that the DIR has not been attached. "Since the PWDVA is a welfare legislation, procedure cannot defeat the substance," the report says.
The report also recognises that the passage of a law does not guarantee its automatic implementation. There is a need, it says, to harmonise other women-related laws with the Act and to enact a law on matrimonial property. The law nevertheless has introduced radical concepts like live-in relationships, right of residence, and so on. But these concepts need to be part of laws regarding marriage and other legislation through appropriate amendments, it says.