Monday, November 15, 2010
RECOMMENDATIONS Third Monitoring & Evaluation Report 2009 on the Protection of Women from Domestic Violence Act, 2005
The M&E of the implementation of the PWDVA has reached another milestone in its third year. With the experience of having undertaken a nationwide evaluation of data with a primary emphasis on adequacy of infrastructure in the previous two years, the focus this year has shifted to a comprehensive assembling and analysis of the KAP of key stakeholders. Hence, in addition to finding continuing evidence of the need for effective and adequate infrastructure, the data analysed this year also points to the need to review certain aspects of the substantive and procedural law. Specific suggestions with regard to effective capacity-building of implementing agencies, towards ensuring adequate infrastructure, and creating a system of accountability for all the stakeholders have also been put forth.
Although a definitive conclusion as to the nature of amendments required in the PWDVA cannot be made at this nascent stage, recommendations highlighting the areas that require in-depth evaluation in the coming years have been provided in this chapter. In the next two years, LCWRI and ICRW seek to track these issues through data collection and analysis in order to suggest specific amendments to the PWDVA. The recommendations in this chapter have been provided with the understanding that the Law in order to be effective, ought to be responsive to the needs of its users and practices of the stakeholders.
Definitions and Coverage
(1) There is a clear gap in the understanding of domestic violence as defined by the Law. While most stakeholders recognise emotional and verbal abuse as forms of violence under the Law, physical violence, which is visible in nature, appears to takes precedence over other forms. Sexual violence within marriage is clearly not recognized as a form of violence. This selective interpretation of domestic violence will and does influence the subsequent implementation of the Law by various stakeholders.
Trainings with stakeholders should be undertaken to clarify that domestic violence can take various forms and is not restricted to physical violence alone. The trainings must focus on sexual, emotional and verbal abuse as key components of the definition of domestic violence and undertake an in depth examination of these aspects so that women facing sexual, emotional or verbal violence receive as much attention from stakeholders as women facing physical domestic violence.
(2) Analysis of orders indicates that a combination of various forms of abuse are experienced and reported by the AP. This is consistent with our experience with Third Monitoring & Evaluation Report 2009 women who say that they face multiple forms of domestic violence, and is reiterated by the POs who say that domestic violence co-occurs1. The most common forms of abuse seem to be economic and physical (either singly or in combination with others). The predominant form of economic abuse reported is dispossession or the threat of dispossession of the AP from the shared household and refusal to provide maintenance.
This trend strengthens the case for equitable distribution of matrimonial property and underscores the continuing relevance of the issue of dowry and the need to strengthen the Dowry Prohibition Act, 1961.
(3) The right to reside remains an area of major concern for women. There is much confusion amongst the implementing agencies as to the scope of the definition of right to reside. Many POs and Police officials were unable to distinguish between the right to reside and the right to share in the property. Many felt that the Act gives the AP a right of ownership over property, which it does not. The right to reside is most affected by the Supreme Court judgment in Batra v Batra. The analysis of orders show that this judgment has been used to deny Residence Orders to married women and widows by providing the reasoning that since the premises belong to the mother-in-law and fatherin- law, and not the husband the home is not a shared household. However, what is encouraging is that in both Delhi and Maharashtra, the courts have distinguished the facts of the cases before them from that of Batra. They have upheld the AP’s right to reside, on the ground that in Batra v Batra, the husband’s claim to have left the house of his parents was false and done with the intention of denying the right of the wife.
There appears to be a clear need to further explain the scope of “shared household”under the Act and the right to reside as providing a right of residence, irrespective of ownership, title, or interest in the premises
Coverage: Aggrieved Person and Respondent
(4) As recorded in the previous M&E Reports, married women continue to remain the primary users of the PWDVA followed by widows. While the information gathered from order analysis shows that applications by daughters were limited, mothers have used the Law in a number of instances. However, by and large there appears to be a perception that the Act is predominantly a matrimonial law. A fair level of misunderstanding exists with regard to key concepts such as the definition of AP2 and of Respondent3. In the case of the AP, it arises mainly in the case of a mother-in-law wanting to fi le a complaint against her daughter-in-law. With regard to the Respondent, there seems to be general clarity that it is ‘any adult male person;’ the husband is shown to be the sole Respondent in a majority of orders examined. However, the confusion arises with regard to female relatives of the ‘adult male’ and is prevalent amongst the Judiciary as well.
Whilst trainings and awareness creation can help reduce the confusion with regard to these definitions, there still remains a need to revisit these definitions in the PWDVA. Perhaps a clarification is needed, that, female relatives of the husband/male partner come within the purview of the Act
Practices and Procedures
(5) Counselling at the pre-litigation and litigation stage of proceedings have completely different objectives and requirements, which are rarely understood by all the relevant stakeholders. At the pre-litigation stage, counselling should be provided to the AP to restore her self-esteem, provide emotional support and assist her in making an informed decision as to whether she wants to initiate legal proceedings. As far as the Respondent is concerned, the focus should be on helping them acknowledge their past acts of violence and counsel them to stop further violence. The objective of court directed counselling at the litigation stage is mainly to prevent violence, and where the woman so desires, attempt settlement. It is difficult to gauge who is providing counselling services at the pre-litigation stage. However, findings have made it clear that women need pre-litigation counselling in addition to pre-litigation advice as provided under Section 5 of the Act. The courts appear to continue to rely heavily on counselling and mediation. However, the concern here remains whether the courts are able to distinguish between counselling, mediation and settlement.
Therefore, there is a need to understand counselling as mandated by the Law and its intent, in order to counter practices that might work against that intent. Findings clearly indicate that the meaning and objective of counselling under the Law, by whom and at what stage, need further elaboration. Hence, counselling needs to be defi ned and its objective at both the pre-litigation and litigation stages needs to be clarifi ed through appropriate amendments to the provisions on counselling under the Act and Rules.
(6) The objective and purpose of the DIR, of serving as a documentary record/evidence of violence and simplifying the procedural requirements in accessing courts, has not translated into practice. Findings have indicated that POs neither fi ll out a DIR each time a woman approach them, nor do they maintain any other record of the woman’s complaint or visit. This could have negative implications in case the woman decides to fi le a case in court at a later stage as no record of the history of violence would be available. Better understanding with regard to the purpose of the DIR is required. Perhaps practice directions from relevant High Courts clarifying this issue would help achieve uniform interpretation and usage.
(7) Findings from order analysis in Delhi lend credence to the fact that in the absence of a DIR to accompany the application fi led before the court, it is the woman whose interest gets compromised. In practice, the courts appear to interpret the proviso to Section 12(1) of the Act to mean that a DIR needs to be recorded by the PO or that they must necessarily consider the information contained in the DIR before passing any order under the Act. This problematic interpretation by the courts may therefore make a difference between availability of speedy reliefs and delays in proceedings. One of the most disturbing observations has been the lack of information/limited reference made to the role played by POs in the process of litigation.This finding needs to be tracked and verified in the coming years to develop a better understanding about the role of POs within the litigation process.
(8) In most states, the practice of POs seeking assistance from Police in the discharge of specific functions under the PWDVA is gradually emerging. However, usually, it is only upon court direction that such assistance is provided. This can be attributed to the common misconception amongst the Police that as the PWDVA is a civil law; they have a limited or no role to play in its implementation. Therefore, clarity on the role of the Police in the implementation of the PWDVA, perhaps by way of trainings or directives is essential to ensure consistency in the nature of assistance provided by them. Both the Police Department and the Judiciary are ideally placed to provide such directions.
(9) As in the previous M&E Reports, reliefs that are most commonly sought and granted are Maintenance Orders, Protection Orders and Residence Orders, with Maintenance Orders being the most commonly granted, followed by Protections Orders and then Residence Orders. The relief of maintenance sought is primarily on refusal to maintain the wife and children as well as desertion or dispossession from the shared household. The number of ex-parte/ad-interim orders being granted is extremely low. This is a negative trend as it defeats the purpose of granting immediate relief to the woman facing domestic violence and extricating her from a violent environment. Hence, it is strongly recommended that the courts do not hesitate to grant ex-parte or ad-interim orders where there is a prima facie case and where the denial can, and often does, lead to imminent harm or danger. Interim orders are being granted in Delhi and Maharashtra and Maintenance Orders are the most frequently provided interim relief. However, more emphasis needs to be placed on the significance of immediately granting interim orders. They should be granted as a matter of routine whenever the AP can prove a prima facie case in her favour, without going into technicalities of procedure.
(10) The PWDVA vests the Judiciary with discretionary powers with regard to procedure to be followed when dealing with domestic violence cases. This was done
with the intention of allowing the Judiciary space for creative interpretation and initiative. However, in certain instances, it appears that this discretionary power is resulting in a lack of uniformity in procedures being followed. Therefore, it may be recommended that there is a need for guidance with regard to procedures. In the absence of amendments to the Act, this could be provided by High Courts in order to address the confusion or delays but at the same time, care must be taken to ensure that the directions provided do not defeat the intention and object of the Law.
(11) By and large, the procedure being adopted by the court is that at the interim stage, decisions are based on affidavits in Form III while at the final stage, Section 125 CrPC procedure is followed. A unique but disturbing trend of a large number of compromises or settlements has emerged9 in Gujarat. Although it was not possible to determine the reasons for this trend, perhaps in many of these cases compromises are imposed on women in the name of maintaining family, which in the process expose her to continued and/or even greater violence. In view of the fact that a similar finding emerged in case of Himachal Pradesh in the Second M&E Report, it is essential to undertake a detailed analysis of this development in states where such high rates of settlement and compromise have been observed over a period of time, to understand the factors that encourage such high rates of settlements.
(12) Order analysis has revealed a trend where a majority of appeals are being preferred at the interim stage of the proceedings as opposed to being made against final orders. This is of concern as the execution of the interim order passed gets stalled during the appeal proceedings. Thus this practice should not be allowed and encouraged as it defeats the purpose of providing immediate reliefs to the woman in order to extricate her from the violent environment. It is recommended that the Act should be amended to the effect that appeals are disallowed at the interim stage in domestic violence cases and are disposed of within a stipulated time frame so as to prevent prolonged proceedings that defeat the very purpose of immediate reliefs mandated under the Act.
(13) Filing complaints for breach under Section 31 the PWDVA remains the predominant method of enforcement of orders. However, one of the problematic aspects that require the immediate attention of the higher Judiciary as well as policy makers is that, in a majority of cases, no direction for enforcement/compliance of orders is included in the orders themselves. This acts as a barrier for the woman who must approach the court separately for such a direction. It is recommended that a direction for enforcement be contained in the order and in addition the courts direct the Police to assist the POs in the enforcement of the order should the need arise. Further, a mechanism, to track orders passed by courts and their subsequent execution, needs to be set up.
(14) Findings10 indicated that the court is failing to provide updates to the Pos regarding the proceedings of the case and copies of orders from the court are also not being forwarded to them. This acts as a barrier in the implementation of the PWDVA, as POs are expected to enforce orders.
(15) There has been a gradual increase in the appointment of independent POs on a full-time basis over the past 3 years. Whilst it is desirable that a cadre of independent, full-time POs with the requisite qualifications and gendered perspective be appointed, they would not be effective without adequate infrastructure and budget such as allowance for transport, mobile phone, private office space, and official letterheads and so on. Thus, what is needed is not merely infrastructural aid but institutional status as well. There is a need to review and perhaps ensure some uniformity in the qualifications of POs, particularly in view of the need to appoint a full-time cadre of POs to effectively implement the Law. However, a defi nitive conclusion as to what the qualification and role of the PO ought to be can only be arrived at following a separate study which includes comprehensive data collection and analysis of practices in this regard across the states. Regular and systematic assessments and reviews should be undertaken by states with regard to the type of support being given to POs. This will facilitate an assessment of whether or not suffi cient support is being given to the POs to enable them to perform the role that is envisioned under the Law. If it is the case that support is lacking, then this can be looked into and rectifi ed. If it is the case that despite the support being given, the PO is still unable to perform his/her duty,then the state can consider what other types of support should and could be made available to the PO .
(16) Ambiguity surrounds the issue of who is to serve notice, the limitations faced by POs when they are required to do so, and the resultant difficulties faced by women litigants. Hence, there is a clear need to address this issue and provide the requisite personnel/assistance to POs or in the alternative, designate the Police/court process servers to undertake this responsibility. The High Courts of Delhi and Andhra Pradesh have set a good example by bringing clarity and consistency through their practice directions.
(17) The collation of national infrastructure data highlighted the fact that three years after the coming into force of the Act, nodal departments of most states were still unable to provide detailed information about the role of SPs, Shelter Homes and Medical Facilities as it is still not clearly visible. Hence, there is a need for coordination between stakeholders and the adoption of a uniform practice of reporting to nodal departments regarding their structure and functioning, as discussed further in the Monitoring and Accountability section below.
(18) To date, it has been reported that 17 states have made budgetary allocations for the implementation of the PWDVA. However, there is no systematic basis for making these allocations, and much is left to the discretion of the individual states. There is a definite need to increase budget for support and for allocation of funds to implement the Act. It is suggested that a scheme should be formulated to ensure a regular annual flow of a specified amount every year with ongoing financial monitoring.
Awareness Creation and Capacity Building
(19) The findings of this Report highlight the fact that knowledge of the Law and attitudes of the stakeholders hold equal importance as an imbalance of either can hinder or frustrate the objective of the Law. Further, it is clear that there are gaps in the understanding of the PWDVA and its coverage amongst Police, POs and Judiciary which need to be addressed. Trainings undertaken by LCWRI have demonstrated that there is a significant level of positive change that can be achieved even through limited (in terms of length and exposure) interventions, if there is comprehensive coverage of the Law and a gendered approach is adopted. This leads to the assumption that for all stakeholders to be covered and for the impact to be sustained, there is a critical need for systematic and more intensive trainings. In order to achieve this, trainings must be institutionalised and the primary responsibility must vest with nodal departments and training academies. As a first step, states should undertake systematic orientation training on the PWDVA, thereby having a trained and sensitised body of implementers of the Law from the outset. This should particularly be ensured every time a cadre of POs, new batches of Police Officers and Judges are inducted into their respective services. This ought to be followed up with special refresher programmes for in-service officers. Professionals and persons with expertise in the area of gender and domestic violence should be invited to conduct these training programmes. In fact, the training interventions conducted with the Judiciary, made it clear that Judges respond well to professional experts such as medical professionals, Lawyers etc. At the same time, a specific component of gender sensitisation with a specialist exploring the attitudes of the Judges is crucial.
(20) The LCWRI model of capacity building or Training Interventions to bridge gaps and ensure effective implementation of the Law works effectively, as indicated by our findings. It is recommended and hoped that the participants trained will take on the responsibility of further training and sharing information and knowledge gained with their colleagues and juniors. However, this is an aspect that would require some time and tracking in the years to come.
(21) There are gaps in awareness and knowledge amongst the POs on specific procedures to be followed in general and with regard to the fi lling of DIRs, serving of notice and reporting of breach in particular. With regard to the Police, findings are clearly indicative of gendered perceptions. As the Police are often the first to be approached by women facing domestic violence, these gendered perceptions, if not addressed through appropriate training and sensitisation workshops can be impending barriers to women accessing the law. Hence, training programmes with the POs, Police and other relevant stakeholders need to be conducted to address this issue in a comprehensive manner.
Monitoring and Accountability
(22) The existence of varied practices and lack of adequate infrastructure, budget and trainings across the states reiterates the need to institutionalise the M&E of the implementation of the PWDVA. The State needs to adopt a comprehensive system for the monitoring and evaluation of the implementation of the Law on an annual basis as recommended in the First and Second M&E Reports.
(23) To date, there is no system of mandatory reporting to the nodal department by all stakeholders. In fact, the information provided by the nodal departments show that it is only the POs who report to them. Therefore, over a period of time, a misconceived assumption has developed; that it is mainly the PO who is responsible for the implementation of the PWDVA and that other stakeholders do not have much of a role to play. Hence, there is an urgent need to ensure accountability through developing a robust system of mandatory reporting on specific indicators15 for all stakeholders, including the Judiciary. As the Judiciary follows a distinct reporting structure, it is recommended that there is regular sharing of information regarding the PWDVA between the higher Judiciary and the nodal departments.
(24) Currently, performance in cases fi led under the PWDVA does not form a part of the criteria against which the Judiciary is evaluated. Provision of information as to the exact nature of the cases is left to the discretion of the individual Judge. The issue of domestic violence should be given the priority and focus it deserves. Therefore, it is recommended that cases fi led under the PWDVA should be included as part of the duty performance system of the Judiciary. A similar approach can also be followed in case of POs, with the development of an incentive-based performance and appraisal system to facilitate accountability and better implementation of the Law.
(25) A major obstacle in the identification of the total number of cases fi led before the courts under the PWDVA, arises due to the existing system of registering and labeling cases. In some courts it is a miscellaneous application, while in some, it is registered as a criminal case or a domestic violence case. Uniformity in the description and registration of the cases under the PWDVA in the Court Registry is a much needed requirement.The First M&E Report identified three models of implementation of the PWDVA. This year’s M&E Report has not been able to track the existence of these models, across all states due to the specifi c focus on a few states. However, these models continue to exist in the 3 states studied this year, Andhra Pradesh (Public Model), Rajasthan (Private Model) and Delhi (Mixed Model). Tracking these models continue to remain relevant in the years to come.
PWDVA – PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT
LCWRI- LAWYERS COLLECTIVE WOMENS RIGHTS INITIATIVE
PO – PROTECTION OFFICERS
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