Advocate J Sandhya cut short her maternity leave and came to work that December. Her baby was born in October. Less than two months later, she filed one of her first petitions under the Domestic Violence Act, 2005.
A woman had sought Sandhya’s help when her husband, then a top pilot, began abusing her and backed out of their marriage suddenly. It was an inter-religious marriage and this had estranged her from her family. The woman had a child to take care of and no money to pay even the rent for a hostel. She was starving and on the verge of suicide. But the very same day the petition was filed, the court ordered that the estranged husband give her Rs 25,000 in five days and keep paying the same amount every month after that. This saved the woman.
“That was one of the two cases that brought my trust back in the Domestic Violence (DV) Act,” Sandhya says, 11 years later, sitting at her office in Thiruvananthapuram.
The other case was between actor-politician Ganesh Kumar and his then wife Yamini Thankichi. Both had ended well. The woman Sandhya had cut short her maternity leave for went on to study, become a chartered accountant, emerging a very confident person after the ordeal.
That’s what the Act does, if it can be implemented properly. But as thorough as the Act is, its execution has not been easy. In this story, we try to look at how effective the DV Act has been in Kerala, over the past 13 years.
History
The Protection of Women from Domestic Violence Act, 2005, or the DV Act in short, was drafted by renowned advocate and women’s rights activist, Indira Jaising. It came into effect on October 26, 2006.
The history is pretty strong. It began in 1983 ‘when stoves began bursting in Delhi’, Sandhya says. Before that, domestic violence was not even considered an issue. But then all the stove burning incidents had a common element – newly married young women. Dowry death was finally recognised as a reality. A change in the law was effected. Section 498A was amended to say that if a married woman is harassed by her husband or her in-laws for dowry or any other matter, there would be a punishment of three years’ imprisonment.
For long, 498A became the only provision to deal with domestic violence legally. “The problem was that many women were not getting the relief they desired. Most women didn’t want their husbands to go to jail, they just wanted their suffering to end somehow. So, even as the police came to arrest the husband, the woman would plead to let him go. The law required immediate arrest of the perpetrator and when the husband went to jail, the hostility increased. The men would often turn vengeful against the wives who put them in jail and demand that they leave the house,” Sandhya says.
This became a problem for women who didn’t have anywhere else to go. Sandhya was part of a team that later (in 2010, after the DV Act came into effect) did a survey to check if the amended law was helping women. They looked through five years of files and found only one conviction.
After 498A failed to bring relief, Jaising and others began lobbying for an Act like the DV Act, which basically has a civil nature. “When the case is taken to court, it would give an order, say a protection order. Only if the respondent (husband or male partner) violates the order does it turn criminal,” Sandhya adds. And in this case – when a protection order is violated, the punishment is one year of imprisonment or a fine of Rs 20,000 or both.
What does DV Act cover?
The DV Act, envisaged by Jaising, covered every kind of harassment from the husband or the male live-in partner or his relatives. In an evaluation report from the Kerala Social Welfare department, domestic violence is described as “a pattern of behaviours involving physical, sexual, economical and emotional abuse, alone or in combination, by an intimate partner often for the purpose of establishing and maintaining power and control over the other partner. The origins of domestic violence are in social, legal and cultural norms, some historical and some current, including acceptance of violent behaviour by man as the heads of households.”
Indira Jaising
Kerala’s Social Justice department website says: “Domestic violence under the Act includes actual abuse or the threat of abuse, whether physical, sexual, verbal, emotional or economic. Harassment by way of dowry demands are also covered under the definition of domestic violence.”
At first the women complainants are heard out by a woman protection officer or a service provider. They are then made aware of the Act and how they could use it. They’re offered counselling, while other concerned parties may be called in. If mediation and all other options fail the case goes to court, but at first it would be a civil case. The court would issue an order which the respondent (the abuser) is expected to follow. Only if the respondent violates the order does the case become criminal, and then he can be awarded punishment.
Woman protection officers and service providers
A woman protection officer (WPO) is assigned to every district in Kerala to deal with DV cases. A WPO does everything from meeting the victims and making them aware of their rights to offering services and preparing the Domestic Incident Report (DIR) and communicating with the respective magistrate. The WPO is assisted by service providing centres (SPC) – non-governmental organisations – in every district. SPCs also engage in making the women aware of the Act, arrange counselling and legal services, and provide shelter. At present, there are 87 SPCs across Kerala.
“The protection officers first try to solve the cases through counselling. It’s only when nothing else works that the case is taken to court. The court may issue several orders depending on the severity of the case – residence order that allows a woman to stay in the shared household, protection order that demands that all forms of violence (mental, physical etc.) against the victim stop immediately, custody order in case children are involved, and so on. Among these, the protection order may be issued the same day if the magistrate is convinced about the case, without waiting to hear the respondent’s side,” says an official source in Ernakulam district.
Patriarchal outlook and problems in implementation
The first part of the Act – which treats cases as civil – happens smoothly. The orders are given and the abusive partner is asked to follow it. “Problem is the man may then approach a lawyer who might advise him not to take it seriously, that nothing would happen if he didn’t follow the order. So then the order is violated, and he may continue entering the household against a protection order and be abusive again. When a violation of the order happens, it becomes a criminal case,” the source adds.
It is here that our law needs to be more effective. This part of the Act – punishment for violating orders – is not effectively implemented.
Even a maintenance or a compensation order given by the court, asking the abusive husband or partner to provide for the aggrieved woman, may not be followed. “Again, an advocate they consult may tell them there is no need to continue providing compensation. And this is not even punishable,” says the source.
The basic issue is the patriarchal outlook of most of the stakeholders involved in the implementation. An advocate in Thiruvananthapuram remembers how in the early days – immediately after the Act came into effect – as soon as she’d stand up in court, a judge would tease her, “Which husband are you going to get hanged today?”
“In a survey conducted across the state two years ago, it was found that 90% of the victims are landless or with little wealth for themselves,” says an official source in Kozhikode. She also mentions the National Family Health Survey (NFHS) which found that more women than men think it is acceptable for a husband to beat his wife.
Women’s activist Kavita Krishnan, in her new book Fearless Freedom, mentions the numbers in the fourth NFHS and writes that “it is not particularly surprising to find that a larger proportion of women as compared to men voice justifications for domestic violence. Patriarchal social relations, like other oppressive relations, do not rely on coercion alone – they rely in very large measure on being able to acquire the consent of the subordinated classes or section of people”.
It’s free!
The WPO and service providers, coming under the state, offer all the services for free. It is perhaps for this reason that it is mostly women from the lower and middle class that seek their help. An official source in the Thiruvananthapuram district says it is also because upper class women appear to fear society more and rarely approach a government system. A few, however, do while others may approach a private advocate.
The causes of domestic violence among all classes appear similar. “Most of the cases arise from alcoholism or substance abuse, extramarital affairs or dowry. And the abuser is mostly not afraid of the law,” the source adds.
According to data shared by the Social Welfare Department, 6,022 DV cases came through the various SPCs in Kerala in 2016-17, 4,636 in 2017-18 and 5,025 in 2018-19.
Wider awareness, more government support needed
Awareness is a key factor, not just for the women who can take advantage of a law that covers every kind of harassment but also for the people who can ensure they get justice. The police and the judiciary should be aware. “There are several protective laws for women but this is the only one that reflects the real issues. If all the stakeholders do not have a feminist sense it will not work. It has to be a very gender sensitised system for the Act to work,” Sandhya says.
The first place most abused women seek help are police stations. “Police stations may try to resolve the issue by counselling and send the couple back home instead of referring them to the concerned protection officer or a service provider. Legally, only the protection officer and the service providers are supposed to file the DIR. But sometimes the lawyers that the aggrieved women approach may also do it. And the court may then forward it to the WPO or SPC,” says the source.
Awareness, therefore, has to go more grassroots. Both the service providers and the protection offers conduct awareness classes. When the Act initially came into effect, these were more systematic, the government had allotted money for it and mandated that at least 10 such classes be conducted every year in every district. But the importance given to these classes, much like the other provisions of the Act, has faded in the passing years.
“The government takes very little interest in bringing the DV Act to the mainstream. At some level, most of the male stakeholders – be it in government, police or judiciary – trivialise it as a women’s issue. Perhaps they are also worried about their wives or partners using the Act as a tool against them. The patriarchal attitude of society keeps coming back to weaken the Act,” says Beena Sebastian, who runs Cultural Academy, one of the service providing NGOs in Ernakulam.
Very few resources are provided for SPCs and WPOs. One WPO per district is too less, says Sandhya.
“If you look at the number of cases in a district, you can see it is difficult for one person to handle it all. The WPO also has other duties to perform. They are supposed to visit homes – in fact, the law says don’t wait for the women to approach you with a grievance, keep a watch and proactively address harassment. The protection officer also acts as a bridge between the magistrate and the victim. But if they have to sit in their offices and listen to complaints on a daily basis, they can seldom communicate with the magistrate. The state has to pump in more efforts in sensitising both the judiciary and other stakeholders and in bringing in more resources,” she says.
Having more people on board will help the protection officers who already have administrative help in place – like a clerk and an office assistant. But the administrative staff cannot hear out victims. A full-time family counsellor and a legal counsellor will ensure smoother implementation of the DV Act. Right now, service providing centres provide part-time counsellors, but it is not practical.
Role of counsellors
Counsellors have a big role to play if you look at the number of cases solved through their mediation. In 2018-19 out of the total 5,025 cases, the number of cases settled through court was 357 and through counselling was 2,923.
“We don’t force anything on the women because they’d have already gone through a lot and come to the centre as a last resort. But they are made aware of the choices they have,” Beena says.
After she is made aware of all her options, if the woman insists that she can’t put up with it anymore, the provisions of the DV Act are used to take it up in court.
The difficulty comes after the DIR is filed at the magistrate court, Beena says. “A different lawyer is assigned by the Kerala State Legal Services Authority (KELSA) and the woman would have to explain her case all over again.”
It is also important to address domestic violence as the root cause of so many other issues.
“Boys raised in families where the father beats the mother would grow up thinking it is okay for him to do the same to his wife when he gets married. It becomes cyclic. We, as service providers, interact very closely with the victims and survivors of domestic abuse. It is high time that the state utilises our expertise and not takes us for granted,” Beena says.
So many possibilities but Act is sidelined
A law with so many possibilities being sidelined to this extent is a reality few seem to care about. This is a concern for all the women who work for it. In the early days, when the law was still new Sandhya and a few others met to discuss what aspect of the Act should be highlighted to make people aware of it. Sandhya, in all her excitement, pointed out that this was the only law that states that a woman has the right to marry a person of her choice.
“Everyone at the meeting looked at each other and then asked me ‘should we mess up a family’. This was not an aspect I invented, it was part of the Act. The state is actually afraid to specify something that is part of the law,” she says.
Neenu and Kevin
In the more recent Kevin murder case of 2018, recognised by the court as a case of honour killing, Sandhya points out if there had been intervention by the judiciary earlier, if the parents had been made aware of a law like the DV Act, perhaps it would not have ended the way it did.
“Neenu’s (Kevin’s partner) family may have thought let’s deal with it in court. People have no idea that there are so many prospects for this law,” she says.