Memorandum on The Protection From Domestic Violence Bill

Memorandum on The Protection From Domestic Violence Bill 2004
27 June, 2005  
Shri S.R. Bharadwaj,
Union Minister for Law and Justice,
Shastri Bhawan,
New Delhi.
Dear Shri Bharadwajji,
We welcome the move by the present Govt. to introduce the Domestic Violence Bill 2004 in the parliament. However, apart from certain other lacunae, the present Bill has a major flaw in that it allows a woman relative of the husband including his mother, or sister, etc. to file a complaint against the wife/live-in partner. In a patriarchal society like ours the wife and children are the most vulnerable members of a household. Thus such a provision would lead to a gross misuse of the proposed law as false and counter cases can be filed against a wife. A husband/male partner can also use his women relatives to further perpetuate acts of domestic violence. In fact, in our experience, of more than twenty years of dealing with such cases, in most cases of domestic violence, the husband's family not only sympathizes with him but often also participates in perpetuating acts of violence within the home.
AIDWA and other women's organizations/ groups have, for several years, been making a demand for the introduction of a civil law to deal with the issue of marital violence generally known as domestic violence. They have felt the urgent need for a law that goes beyond the present criminal law i.e. Section-498A IPC to ensure other rights which could be made available only through civil legislation. The rights include the right to get injunction orders for protection from domestic violence, the right to residence and certain other reliefs like monetary compensation, maintenance, custody orders etc. The present Bill, in fact, seeks to provide these reliefs. However, by broadening the definition of an 'aggrieved person' and 'domestic relationship' the Bill, in effect, allows a relative of the husband to seek a variety of orders against a wife or a woman living in a relationship like marriage. Thus, for instance, a woman relative of the husband such as a sister can ask for orders against his wife from alienating any of her assets, for maintenance, for compensation and damages etc. In this sense the Bill is conceptually flawed and creates rights in favour of women relatives, which they are not even entitled to. In fact, women's organizations had asked for these rights to ensure that wives and children are not abandoned and thrown out of the matrimonial home and denied certain basic rights which flow from the marriage and/ or living together as in a marriage. Under the present law these very rights can be jeopardized and wives can be further victimized. While we recognize that cases of old age abuse can/do also occur we feel that these cases impact upon both old men and women and have to be addressed by a separate law, which deals with the responsibilities of both children and the State towards this kind of abuse
It is therefore necessary to change the definition of a 'domestic relationship' and an 'aggrieved person' to read as under:
"h) 'Domestic relationship' means a relationship between two persons in the nature of a marriage and minor children who live with the said two persons or either of them in the shared household."
"a) 'Aggrieved person' means any woman or minor child who is or has been in a domestic relationship."
Apart from this, Chapter III i.e. Section 5, 6 7 and 8 of the Bill refers to the appointment, duties, powers etc. of a protection officer. We feel that in many cases these provisions may work against the victim. The protection officer has been given extremely wide powers under the Bill that can be misused. He/she is conceived of as an intermediary between the domestic violence victim and the court and can entertain applications for domestic violence. The Protection Officer can make a domestic incident report and has been given wide powers to assist a Court in the discharge of its function under the Act. We feel that the introduction of Protection Officer will further bureaucratize and delay the whole procedure. The Protection Officer is liable to be gender biased, corrupt etc. Apart from this, appointing Protection Officers on such a large scale may itself not be feasible. We propose that this entire section be deleted. We suggest instead that if the Court feels it necessary it may appoint any person to assist in the case. Once the court gives a protection order it is the responsibility of the state through its police to ensure that the protection granted by the court is implemented. The court can also as in other countries where such legislation is available, issue a suspended warrant of arrest, which will come into operation, if the order is violated.
It has also been provided in Section (2)(t) that a service provider would mean any Registered Voluntary Association. The concept of "service provider' itself is objectionable. The success of struggles against domestic violence depends to a great extent on the support of the community, neighbours, friends, etc. to the victim/complainant. We have always sought to encourage social intervention in favour of the victim. By adding such a clause, the proposed Bill makes a mockery of social intervention. Why should a victim have to go only to a registered organisation for help? In this huge country there are any number of regions where such reliable registered organisations do not exist. This clause may also be misused by the police to harass non-registered groups or even individuals helping the victim. Such instances are there even today. State Governments can also misuse this clause to register only organisations not opposed to their political interests. Therefore we feel this clause should be deleted.
Unless the changes that we have suggested are made in the Bill, the legislation will not serve its purpose of protecting victims of marital violence. We therefore urge the Union Govt. you to make these changes before introducing the Bill in parliament.
Yours Sincerely
Sudha Sundararaman
(General Secretary)
Advocate Kirti Singh
(Convener, Legal Cell)