Domestic violence is a manifestation of inequality within the home. It is therefore, not enough to advocate for the implementation of laws criminalising domestic violence. There is a need to create an enabling environment in which a woman is able to assert her rights and seek legal recourse. It is, therefore, essential to address the inequality within the home and recognise rights that counter such inequality to enable women to seek legal action. Given the lack of support a woman is provided with, it is unlikely that a woman will ever resort to legal remedies unless she is assured, at a minimum, of a right to reside in her home. This has a bearing on property and matrimonial rights of women that are currently within the realm of separate personal laws of religious communities. The right to reside that has been recognised through our campaign for a civil law on domestic violence is applicable only in circumstances of violence. In order to recognise women as equal stakeholders within the family, it is essential to review personal laws governing property and matrimonial rights.
Campaigning For the Law
The Lawyers Collective (Women’s Rights Initiative) began its campaign for a civil law on domestic violence in the early 1990s. The need for a specific law on domestic violence was obvious, given the fact that the Indian legal and political systems have denied adequate legal redress to women facing violence within homes and intimate relationships for long.
With the coming into force of the PWDVA 2005, this campaign has achieved a landmark victory. However, we believe that our task is only half done. We have to take our campaign to the next level i.e. working and advocating for the effective implementation of the law through public awareness, sensitization & trainings and ensuring that the mechanisms provided in the law are in reality put in place and made accessible to women. It is only when women are empowered to negotiate from a position of equality, will our campaign reach its logical conclusion.
The Need for a law on Domestic Violence
Under the civil law, a woman can initiate proceedings for divorce and judicial separation on the ground of cruelty. But this fails to provide any kind of immediate relief to the woman, besides leading to problems of costs and delays in litigation.
Further, the breakdown of a marriage in our society with its attendant discrimination means a virtual civil death for a woman. In the absence of any adequate recourse under civil law for emergency relief and immediate protection from violence, Section 498A IPC therefore, provided women with the only means for such protection prior to this Act. But the reluctance of women to approach the criminal justice system and the inadequacy of the criminal remedy itself are important realities of our social context.
Again, in India, a prominent manifestation of domestic violence is first for the woman to be made a prisoner of the house and then to be thrown out of it. Therefore, there was an urgent need for a law, which could address this phenomenon of depriving women of their Right to Reside in the shared household.
Hence, a more concerted legal strategy to combat domestic violence consisting of a judicious mix of both civil and criminal law remedies, which is sensitive to the experiences of women facing violence at home, the reasons and nature of the violence, the immediate requirements of the woman, and which addresses existing inequalities in domestic relationships was urgently required.
The Constitution of India guarantees substantive equality to women. Such guarantees of substantive equality include not just declaration of rights, but also facilitate access to justice to realize these rights. Therefore, a legislation that combined protection of women from domestic violence with mechanisms, which ensure access to justice in case of violation of this protection, was necessary.
At the start of the Lawyers Collective campaign, it was decided that the law should be primarily civil in nature, with important crossover elements of criminal law. However, the foundation of this effort was and still remains the recognition of the agency of the woman.
The Passage of the Law
Following the inclusion of the domestic violence bill as a priority within the CMP, we were invited to a series of discussions on the proposed bill with the Secretary and members of the Department of Women and Child in the months of May – July. Based on these discussions, it was decided that the LCWRI Bill would be taken as the basis for any future law on domestic violence.
This was followed and complemented by state, regional and national level consultations. The introduction of the Bill in the Parliament was preceded by presentations made by LCWRI along with several prominent women’s groups and a full-fledged campaign to create awareness on the need for this law. The campaign that was started in 1998 by LCWRI with several women’s groups from across the country.
The Roadmap Ahead:
Drafting the Protocols & Manuals on PWDVA 2005 Now with the successful culmination of the campaign to create a sensitive, gender-just domestic violence law, the LCWRI has been approached by the Ministry of Women and Child Development to draft Training Protocols and IEC materials to create awareness on the law and for the use of the implementing agencies. These materials to be prepared by us will be adopted and disseminated by the central government.
We are also undertaking a Project with grants from the UN Trust Fund to eliminate violence against women (administered by UNIFEM) for the purpose of implementation of the PWDV Act 2005 to carry out a project for training and advocacy on laws relating to domestic violence. Under this Project, we will be preparing a Training Manual for Implementing Agencies (Protection Officers & Service Providers) as well as a Bench Manual for the Judiciary. We would be creating instruments that would be used to train and sensitise implementing authorities under the Act and to raise awareness on this law in order create an enabling environment for women to assert their rights against situations of violence. We hope to disseminate enough information about domestic violence, its history and other factors such as identifying potential victims or perpetrators, understanding theories of domestic violence, the legal aspects of dealing with abuse etc. Thereby facilitating the creation of an atmosphere free from violence and helping women to negotiate for space within their domestic relationships through easier access to justice.
Our efforts will be linked up with support from the Ministry, the NCW and the TISS.
Advocacy and Training:
Our advocacy work on domestic violence continues, and in fact, has assumed a new significance in light of the issues raised with regard to implementation of the Act at state levels as well as the need to ensure that the law is understood and interpreted in its true spirit.
The LCWRI has been actively engaged in advocating for putting in place the implementing agencies and structures under the Act with nodal departments of various state governments, National Commission for women, State women’s commissions.
At the same time, we continue in our endeavor to create awareness on the law by conducting and facilitating training workshops for lawyers, members of the judiciary, NGOs, community workers, women’s support groups and students in various parts of the country.
In recognition of the fact that survivors of violence are in an ideal position to understand and empathize with other survivors, the LCWRI has facilitated the formation of a “Survivors’ Group” in Mumbai and in Delhi .
The objective of this initiative is to make this group self sustaining with limited support from the LCWRI and to draw support from this group in future to sustain legal advocacy efforts.