STAYING ALIVE: EVALUATING COURT ORDERS Sixth Monitoring & Evaluation Report 2013 on the Protection of Women from Domestic Violence Act, 2005 © Lawyers Collective Women’s Rights Initiative, 2013 The Lawyers Collective Women’s Rights Initiative The Lawyers Collective is a group of Lawyers with a mission to empower and change the status of marginalised groups through the effective use of law, and an engagement in human rights advocacy, legal aid and litigation. The Lawyers Collective Women’s Rights Initiative actively uses the law as a tool to address critical issues of women such as domestic violence, sexual harassment at the workplace, matrimonial and family related matters, crimes against women particularly sexual assault and reproductive rights. The Lawyers Collective Women’s Rights Initiative was instrumental in the drafting of, lobbying for and enactment of the Protection of Women from Domestic Violence Act, 2005 (“PWDVA”). Understanding that evaluation is at the core of effective functioning of any legislation, the Lawyers Collective Women’s Rights Initiative has been conducting an annual monitoring and evaluation exercise on the manner in which PWDVA is being implemented across the country since its enactment. This is the sixth year of the law and we present to you the Sixth Monitoring and Evaluation Report, focusing on court orders. Designed and Printed by: New Concept Information Systems Pvt Ltd. Email: [email protected] Staying Alive: Evaluating Court Orders Sixth Monitoring & Evaluation Report 2013 on the Protection of Women from Domestic Violence Act, 2005 Lawyers Collective (Women’s Rights Initiative) Supported by: United Nations Trust Fund to End Violence Against Women January 2013 New Delhi Table of Contents Foreword v The Big Picture ix Acknowledgements xiii List of Abbreviations xv Section A: Setting the Context 1 A.1 Introduction and Objective of the Report 3 A.2 Methodology 8 Section B: Analysis of Judgments of the Higher Judiciary: High Courts and the Supreme Court 19 B.1 Judgments of the Higher Judiciary 21 Section C: Analysis of the Orders of the Lower Judiciary: Magistrates’ and Sessions Courts 39 C.1 Trends in Usage of the Act 41 C.2 Causes and Forms of Domestic Violence reported under the Act 43 C.3 Remedies under the Act – Protection Orders 54 C.4 Remedies under the Act - Residence Orders 62 C.5 Remedies under the Act - Monetary Reliefs 86 C.6 Remedies under the Act – Compensation 106 C.7 Remedies under the Act - Temporary Custody 110 C.8 Procedures followed in Court 116 C.9 Settlement of Cases 132 Section D: Reflections and Recommendations 141 D.1 Reflections 143 D.2 Recommendations 157 Section E: Annexures 161 1 List of Acknowledgements 163 2 Rationale for Choosing Districts 165 Table of Contents iii Foreword The Search for the Perfect Victim The Sixth Monitoring and Evaluation Report is qualitatively different from the earlier ones. It is confined to evaluating the functioning of the judiciary and does not address the issue of adequacy of infrastructure under the Act or the institutional capacity to implement the Act. This is not because these issues are not relevant but because the concerns in that respect, including the absence of an adequate budget must be made to the executive rather than to the judiciary. At the time of writing, there has developed a large circle of activism around the issue of providing adequate budget for the appointment of Protection Officers and for their training. These efforts have not yielded results leading to the conclusion that women don’t matter and least of all, violence against women does not matter. It is true that the recent gang rape of a young 23-year-old in Delhi has led to a proactive approach by the State on the question of violence against women and we welcome it, but one cannot help asking the question, does it take a gang rape and spontaneous nationwide mobilisation around it to move the State into action? And how much of it will have a lasting impact on our institutional response? The violence in the public sphere is no more than an extension of violence in the private sphere; this is the message of the Protection of Women Against Domestic Violence Act, 2005. This is a historic moment to see the connection between the public and the private and rid the system of these false distinctions. The tolerance of minimal forms of violence is the breeding ground for extreme forms of violence against women. The first lesson we must learn from evaluating this Act is that the mindset that destroys the peace of the home for a woman is the same one that leads to violence on the streets. Violence against intimate partners is no different from violence against strangers. At a recent consultation hosted by the Chief Minister of Delhi, the Commissioner of Police said 94% of all rapes take place in the home! The veracity of this figure seems suspect, but be that as it may, its implications are obvious for violence in the public domain, making cities unsafe for women. And yet we do not see the connections between domestic violence and the safety and security of women. Lest the protest around the gang rape end up being symbolic, we need to grasp the moment and declare that zero tolerance of violence means zero tolerance of violence. This intolerance must not be only in proportion to the brutality of the violence or its visibility but intolerance of violence as an everyday occurrence in our lives. Violence must be equally intolerant when unleashed by the State as it is when enmeshed by a husband in a home. Hence, to respond to gang rape with demands for death penalty, castration and reducing the age of juveniles for the purposes of ensuring enhanced criminal penalties, is to miss the point. These could be the escape routes, which prevent us from looking at the violence within. Foreword v The Protection of Women Against Domestic Violence Act, 2005 was designed as an instrument for protecting the human rights of women in Domestic Relationships. The law was based on the faith that each human being counts for one; that a woman is autonomous in her being; that her hopes, her aspirations and relationships are meant to be mutually nourishing and nurturing, Yet a reading of this Report would indicate that the focus of the judges is not the individual woman but that the unit requiring protection is the family, to which the woman is subordinated. This Report also reveals that notwithstanding our Constitution and laws, which focus on human rights, property is privileged over human rights. It seems to be the primary human right. If rights are dependent on ownership of property, it is no wonder that women are disinherited and deprived from access to the Shared Household if they are not the owners of the Shared Household. Such is the thinking on which the infamous Batra v Batra judgment of the Supreme Court is based. To undo that judgment, will require a leap of faith from the higher judiciary; focusing away from property to focusing on human rights. Every generation must have the right to interpret the Constitution of India in a contemporary context to make it its own. Only then will they have a stake in protecting it. While the generation that drafted the Constitution is long gone, those to whom it has been entrusted have not been able to see the aspirations of a new and emerging generation. While some advances have been made in reinterpreting the right to life in the public domain, this has not happened in the private domain of the family, where women spend a large part of their lives. The gang rape of a woman is not acceptable to a younger generation of citizens as the protests have shown, so is domestic violence not acceptable to women who reside in the Shared Household. Yet this Report is telling us that judges have not quite understood this message. The reasons for grant and denial of relief under the Act are telling. They paint the picture of the search for a perfect victim, one worthy of relief. Only married women, helpless women, deserted women, abandoned women, are entitled to relief on “moral” grounds. Only women who can show a connection to property have a Right to Reside in the Shared Household. Widows and daughters, sisters and live-in partners have no place in the shared space. They must await new laws addressed to them. Even married women who leave the Shared Household have crossed the lakshman rekha and must now live in their natal home, never mind whether they are welcome there or not. It is the “moral” duty of the parents to look after a deserted daughter. Never before have I seen the use of morality with such a vengeance to deny rights. I was always under the impression that morality is the foundation of rights, not its worst enemy. Women who leave the Shared Household for having faced violence are not in “imminent danger” of facing violence and hence not in need of Protection Orders. Women who live in the Shared Household must not be facing violence as otherwise they would have left, and hence are not in need of Protection Orders. Women who left of “their own volition” are not worthy of relief under the law. Women who refuse to restore conjugal rights are also not worthy of relief. Women who are earning do not need maintenance, those who don’t also do not deserve relief under the law, as they ought to be earning. vi Staying Alive: Evaluating Court Orders Sixth Monitoring & Evaluation Report 2013 on the Protection of Women from Domestic Violence Act, 2005 While some judgments of the Supreme Court have set back the law in large measure, the good news is that there are others, which have advanced the law, both in the Supreme Court and in the High Courts. Despite the Batra decision, judges have been able to give flesh and meaning to the Right to Reside in the Shared Household. Judges have been able to see through mala fide attempts to defeat this right by bogus surrenders of rights by sons in favor of mothers, by insisting on removal of the woman by due process rather than by physical force, by insistence on alternative accommodation before removal. These are very welcome trends. The Supreme Court in Bhanot has restored a woman to the Shared Household recognising that she has a right under law to reside in the Shared Household. This is the role of the Higher Judiciary, to send a signal to the 17,000 courts in the county that the law must be implemented in its spirit not just in its letter, or rather that the law must be implemented both in letter and in spirit. Indira Jaising Executive Director Lawyers Collective Women’s Rights Initiative January 2013 Foreword vii