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 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
For women in India facing domestic violence, the remedies available prior to 2005 were under the civil law for divorce and under the criminal law provision of Section 498A of the IPC.
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.
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.
The PWDVA was designed and passed to address the gap between the guarantee of the Constitution of equal rights and the problems faced in existing laws. The true spirit of any legislation, however, is recognised only through its effective implementation. The Lawyers Collective Women's Rights Initiative which was instrumental in the enactment of the PWDVA, has taken a step further through the annual monitoring and evaluation ("M&E") of the implementation of the Act since 2007.
The M & E reports are based on three sources of data:
(1) Infrastructure data received from the various State government departments on the implementation of the PWDVA;
(2) State visits conducted by the Lawyers Collective Women's Rights Initiative;
(3) Analysis of Orders on PWDVA delivered by the Courts.
The data received from all three sources is examined together in order to present an emerging picture of the implementation of the PWDVA.