Domestic Violence: Why a New Law?

DOMESTIC VIOLENCE had been dealt with half-heartedly throughout the history of human rights mechanism in this country. Till about 2005, the only recourse for victims was a criminal law, which provided for punishment against the abuser (but no remedies or relief for the victim) and applied only to married women. Worse, the law failed to comply with the definition of ‘violence against women’ in international treaties like CEDAW and the Declaration on the Elimination of Violence against Women, which looked at it as a violation of the rights and fundamental freedoms of women.

Criminal justice law should be re-configured to put the victim’s experience and the victim’s need for protection at the centre of the law, transforming social ideas about blame of victims for the assaults they suffer. – An Amnesty International publication titled ‘Making Rights a Reality: The Duty of States to Address Violence Against Women’.

Women’s groups realized a long time ago that domestic violence is more than crime; it is a serious human rights violation. That the law’s fundamental understanding of violence against women needed to change — from something centred on dowry to a more comprehensive mental, psychological, sexual and economic violation. That a civil remedy was needed more than a criminal remedy.Civil remedies were available in personal laws, laws determined by religion or general civil law but these were very limited. Domestic violence in marriage was treated as a ‘private matter’ between two individuals and mediation was the most commonly adopted approach. Mediation usually usually aimed to cool conflicts, reach agreements and maintain the ‘institution’ of marriage. It insisted on maintaining family relationships inspite of violence and sometimes recommended drastic compromises to ‘save’ a marriage. Plus there was the notion that domestic violence happened because of ‘provocation’. Women had to battle with protracted criminal legal processes – and remain at the mercy of the abuser until the case was resolved. They were often pressurised by parents, relatives or the abuser to turn hostile in court and withdraw the case . (Then it was alleged that women were filing false cases. Statistics showed low conviction in cases of domestic violence and fueled the belief that the law was being misused.)

Why did so many women succumb to pressure and withdraw their case? Because they had no choice and little hope of relief. Resources were few, trials were prolonged and delayed, lawyers were expensive or incompetent, judges were insensitive and often failed to believe that domestic violence could include mental cruelty. At the end of it, they could look forward to a paltry sum towards alimony or a promise of divorce or unconditional custody of children or an ‘honorable’ exit from the messy and corrupt legal system. Nothing that would comprehensively address the mental, physical, economic and social damage undergone.

In this scenario, the new domestic violence law has come as a boon for women. The Protection of Women from Domestic Violence Act (2005) is a gender-specific civil law that addresses the issue of domestic violence more comprehensively than ever before and provides for the woman’s immediate needs of protection from violence and violation of human rights.

Domestic violence is a complex phenomenon and involves multiple aspects. Situations range from women being thrown out of the house to getting no support from the natal family to having to leave their children behind to having no means of sustenance. The new law addresses these aspects by providing women with remedies such as monetary help, residence orders, protection from violence or compensation.

The act is one of the biggest achievements of the Indian women’s movement. After struggling for almost two and a half decades, the women’s movement succeeded in compelling the State to accept its responsibility to end violence — and not just by punishing the abuser. It is a step towards helping women out of from the dark and silent world of violence towards an environment of zero tolerance.

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