The Governor of Jammu and Kashmir gave his ascent recently to a law against domestic violence six years after the Indian Parliament passed a similar legislation for other states. Should it have taken this long given the state legislature has more or less copied the Protection Of Women From Domestic Violence Act, 2005? Sameer Yasir looks at what the law can achieve.
The Protection of Women From Domestic Violence Act came into force from July 13. The general belief is that the new law will help reduce violence against women. The legislation was driven by the United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women. In the existing set up, cruelty against women by their husbands or his relatives is an offence under 498-A of the RPC. The civil law lacked any authority to address the phenomenon in its entirety.
The new law treats all acts as domestic violence if it “harms or injuries or endangers the health, safety, limb, or well- being whether mental or physical, of the aggrieved person or tends to do so.” It also includes causing physical, sexual, verbal and emotional abuse. The law mentions four different kinds of abuses – the physical, sexual, verbal and emotional and the economic. The four categories envisage a vast set of ‘abuses’ that now become cognizable offences.
Insults, ridicule, humiliation, name calling especially with regard to not having a child or a male child and repeated threats to cause physical pain to any person fall in the ‘verbal and emotional abuse’.
Sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of women.
Depriving women of all or any economic or financial resource to which she is entitled is now an offence. It includes anything from household necessities to the requirements of children, rentals of shared accommodation, alienation of assets, valuables, shares securities, bonds and all that in which she has a rightful claim.
The state government is now duty-bound to appoint a number of Protection Officers in each district to oversee the implementation of the law. The POs, as far as possible, should be females and shall possess such qualifications and experience as may be prescribed by the rules that Law Department frames. Indications suggest the government may identify certain officers in districts who will get additional charge of being POs. In extreme cases where the officers would not be available, new appointments might be made.
The POs are tasked to assist the magistrate, help the ‘victim’ to make an application, brief her about her rights and the legal aid that would be provided to her free of cost. They will have the entire data of their territorial jurisdiction about the counseling, shelter homes, legal aid providers and medical facilities the accusers may require. Apart from managing the accuser’s mental and medical examination, the PO has to make shelters available to her if she so desires.
The law introduces ‘service providers’ that would help the system in defending the rights of the victims of the domestic violence. These are registered societies or companies or institutions set up by he law that avowedly have stakes in preventing violence against women. They will have to be registered with the government under this law to become ‘service providers’ or SPs.
The SPs will have the duties almost similar to what POs have. They can make complaints to the magistrate, record statements, get the victim medically and mentally examined and can fight her case in the court and before the magistrate. They enjoy immunity under law from being prosecuted or dragged to court for assisting the women.
As the rules are currently being framed, the law envisages the Magistrate, after hearing both the sides, may pass a protection order in favour of the aggrieved person.
The law even protects the relations and dear ones of the victim and the accused can be prevented from resorting to any kind of violence on the dependents, other relatives or any person who assists her in fighting domestic violence. If she is a child, the accused can be forbidden from entering her school or any other place she frequents.
The established cases will automatically become criminal cases to be registered by the police. Formal trial of the offences under this law shall be governed by the provisions of the Code of Criminal Procedure 1989. Within 30 days of the delivery of the order by judicial magistrate, the parties can appeal before the court of sessions. The law takes care of the victims throughout the process. They will get free copies of the court orders and will get free counseling to go into appeal to higher courts.
Domestic violence is a global phenomenon. J&K is not different from other parts of south Asia. Even though four South Asian countries have laws against domestic violence, it has not actually changed much.
Prof Bashir Ahmed Dabla, the head of the Sociology department at the University of Kashmir, has authored a book on the issue – Domestic violence against women in Kashmir valley. He says some people strangely justify domestic violence on the basis of religion. “The practice is prevalent across rural and urban Kashmir,” he says. In his research carried out in 2005, Dabla found 15 per cent of the married women were physically and mentally being abused.
“The domestic violence is very intense in the valley although it lacks the visibility and attention,” Dabla says.
“Out of the 50,000 marital dispute cases that come to us every year, 25 percent end up in divorce,” claims Mufti Bashirudin, an Islamic adjudicator of Kashmir. “Such cases are more prominent among lower middle class. Failing to adjust to the difficult conditions owing to economical constraints makes the couple intolerant towards each other.”
One of the dominant factors in domestic violence in Kashmir is stated to be dowry which leads to structural violence against women who don’t bring dowry with them. According to State Commission for Women, around 80 per cent complaints from women are related to family conflicts that mainly include harassment for dowry.
Legal experts believe that even after enacting a law, it doesn’t in any case indicate domestic violence ciminated from society unless society refuses to tolerate it. Noted lawyer, Zaffar Ahmad Shah, says there is cruelty borne out of conflict in Kashmiri society.
“Almost on daily basis the courts in the valley hear the cases of domestic violence. Even some years ago people here used to get girls from West Bengal and get married. What followed was disaster and a plethora of domestic violence,” he said.
Dabla says there is a wicked aspect to the issue of domestic violence. “Strangely there is also violence imposed on women by women,” he said. “A number of cases were found in which the mothers-in-law proved crueler then husbands and there is no distinction between rural and urban. It is the same everywhere.”
Experts believe that if the law does not buck up in terms of implementing punishment on those who violate others within the family and home, the weaker will continue to be violated. “Rather than law, we may require making gender equality as part of the curriculum and encourage the public institutions to help spread the word,” says Abdul Rashid, who has two school-going daughters. “The discrimination with the fairer gender needs to end at home first.”